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Smith v R [2016] NZCA 617 (16 December 2016)

Last Updated: 6 January 2017

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
17 November 2016
Court:
Wild, Miller and Brown JJ
Counsel:
N P Chisnall and T Singh for Appellant A Markham for Respondent
Judgment:


JUDGMENT OF THE COURT

  1. An extension of time to appeal is granted.
  2. The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

[1] Mr Smith pleaded guilty to the murder of his former partner, Ms Amanda Taufale, on 17 September 2013. He was sentenced to life imprisonment with a minimum period of imprisonment (MPI) of 17 years by Ronald Young J in the High Court at Wellington on 23 October 2013.[1]
[2] Mr Smith now appeals against his sentence. Because his notice of appeal was filed some eight months out of time, he applies for an extension of time to appeal against his sentence. The Crown does not oppose an extension of time and, since no prejudice arises, we grant Mr Smith’s application.
[3] The notice of appeal contended that an MPI of 17 years was manifestly unjust because the Judge failed to take sufficient account of four matters:
[4] The first and fourth grounds were not pursued on the appeal. However in a minute of 25 August 2016 directing that the appeal be heard by a permanent rather than a divisional Court, the President of this Court invited counsel to file revised written submissions addressing two further issues:
[5] Before considering these grounds, we detail the offending and the sentencing process.

The offending

[6] Mr Smith was born and raised in Jamaica but moved to the Cayman Islands as a migrant worker in 2006. There he met Ms Taufale when she was on holiday in 2007. After a long-distance relationship lasting approximately one year, Mr Smith immigrated to New Zealand in 2009. The two had a son together but their relationship deteriorated shortly afterwards and they separated in 2012. Police became involved following incidents of family violence. Although no prosecution was ever brought, Ms Taufale made it clear the relationship was at an end. She required Mr Smith to give prior notice of access visits with their son, which were to be supervised by a family member. She also requested that Mr Smith return his house key, but he secretly kept a spare.
[7] At around noon on 14 November 2012 Mr Smith left his place of work and returned to his home in Karori where he fashioned a make-shift hood. He then drove to the Tawa railway station, parked his car and walked to Ms Taufale’s house taking with him the hood, gloves, a gib-knife, and an electric drill and screws. He entered the house using the key which he had retained.
[8] Mr Smith then accessed the roof space through a ceiling hatch in the hallway. He tied strapping to a rafter so that he could climb in and out of the roof space and he sank two screws into the hatch so that he could lift it from inside the roof space. He then waited in the ceiling for several hours until Ms Taufale, their son and Ms Taufale’s teenage son returned home and eventually retired to bed.
[9] At approximately 10.30 pm Mr Smith lowered himself into the hallway and, wearing gloves and carrying the knife, he entered Ms Taufale’s bedroom in which their son was asleep in a cot.[2]
[10] In the course of a violent struggle Mr Smith stabbed Ms Taufale a number of times to the throat and clavicle and she received a number of defensive wounds to her hands. The fatal wound was to her neck which severed her jugular vein and carotid artery. The post-mortem determined that it would have taken her several minutes to die.
[11] Before leaving the house, Mr Smith went to a spare room and staged a false entry point by partially opening the window, dabbing Ms Taufale’s blood around and wiping oil over parts of the window, supposedly in an attempt to make it appear as if the offender had attempted to remove fingerprint evidence. However, he left some of his clothing in the roof space.
[12] Mr Smith returned to his car and drove to a nearby carpark, where he threw the gib knife into a stream, but he was unable to re-start the car because he could not locate the key. He then returned to Ms Taufale’s house, took her car and drove to Makara, abandoning it on a farm after removing documents likely to link it to Ms Taufale.
[13] Ms Taufale’s body was found by her teenage son the following morning. Later that day Mr Smith approached a member of the public and indicated that he wished to talk to the police. The police were called, who in due course arrested Mr Smith.

Guilty plea and sentencing

[14] Prior to trial in the High Court four psychiatrists assessed Mr Smith. Dr Darling and Dr Heads prepared court-ordered reports under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 for the purpose of determining whether the appellant was fit to stand trial. Dr Barry-Walsh and Dr Chaplow prepared reports under instruction from the appellant’s previous counsel to determine whether the appellant was fit to stand trial and also to assess the possibility of pursuing an insanity defence.[3] All psychiatrists gave the opinion that Mr Smith was fit to stand trial. For example, the report from Dr Barry-Walsh given in January 2013 indicated that Mr Smith had the capacity to enter a plea and follow legal process, although it was recognised there might be aspects of his personality functioning that made it difficult for him to deal with the court process.
[15] A three-week trial was set to commence on 2 September 2013 but, following a sentence indication given on 4 September 2013, Mr Smith pleaded guilty on arraignment on 17 September 2013.
[16] The pre-sentence report recorded Mr Smith had a dysfunctional upbringing in Jamaica. He had had little formal education and had literacy problems although he had maintained steady employment in a variety of semi-skilled jobs. The probation officer questioned the sincerity of his expressions of remorse, noting that Mr Smith sought to minimise responsibility.
[17] Ronald Young J rejected the submission of Mr Smith’s counsel (not Mr Chisnall) that there were insufficient factors under s 104 of the Sentencing Act to justify an MPI of 17 years. The Judge was satisfied that at least three of the s 104 factors were present: calculated planning, unlawful entry, and brutality and callousness in the killing.[4] Ronald Young J considered that the attack was planned to coincide with Ms Taufale’s vulnerability when she slept, that Mr Smith had unlawfully entered her home and had attempted to disguise who had committed the murder.[5] The brutality of the murder was high, involving an attack on a sleeping woman who was left to bleed to death. Accordingly, the Judge considered that an MPI in the region of 18 to 19 years was the appropriate starting point prior to considering any mitigating factors.
[18] Ronald Young J recognised the personal circumstances of Mr Smith, but did not consider these mitigated the offending. He stated:[6]

I accept that you have been struggling to cope in New Zealand and there were no doubt factors which contributed to this killing in your personality. It seems you did have a particularly rough childhood. You have limited intellectual functioning and poor literacy. There is evidence of long term depression. No doubt these factors all played a part in your offending. But in the end it seems to me that you were angry and frustrated at Ms Taufale’s decision to limit her seeing you and limit you seeing her son and that you reacted aggressively and violently.

[19] Further, because Mr Smith’s guilty plea came about 11 months after he was charged, Ronald Young J considered that only a modest deduction could be allowed. Accordingly, the Judge concluded that neither the guilty plea nor any other personal circumstances convinced him that it would be manifestly unjust not to reduce the MPI below 17 years.

Subsequent developments

[20] None of the four psychiatrists who assessed Mr Smith prior to sentencing considered him to have an intellectual disability, although Dr BarryWalsh and Dr Heads both noted he appeared intellectually limited. Mr Chisnall for Mr Smith obtained a cognitive assessment dated 19 December 2014 from a clinical psychologist, Mr Woodcock. His report raised the possibility that Mr Smith might be suffering from mild mental retardation and recommended further assessment be undertaken.
[21] Counsel being in agreement that a further expert report should be requested, on 12 April 2016 the Court made an order under s 389 of the Crimes Act 1961 that a report be obtained from Dr Mhairi Duff addressing:
[22] Intellectual disability is defined in s 7 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act) as a permanent impairment that:
[23] In her report of 1 June 2016 Dr Duff considered that Mr Smith’s likely true IQ is within the borderline to dull range of cognitive function. On the first issue she was asked to address, the nature and extent of impairment, she concluded:

Despite probable evidence of onset during the developmental period this relates to his borderline cognitive functioning and he shows adaptive functional deficits in only [one] area of adaptive function (functional academic skills of numeracy and literacy). Mr Smith does not therefore, in my opinion, fully meet the impairment in adaptive living skills criteria for a clinical diagnosis of an intellectual disability from a clinical perspective and does not meet the legal requirements of an intellectual disability under the IDCCR Act. He does however have a borderline intellectual level of function.

[24] As to the second issue, the relationship between the impairment and the offending, Dr Duff reported:

His mental state appears to have deteriorated significantly in the months leading up to the murder although not to the extent that accounts for the offending. His traumatic and deprived upbringing and his borderline cognitive function may be seen as contributory factors to the eventual offending but again do not wholly explain or account for the offending.

[25] The report’s conclusion on the second issue was that:

... although none of the issues excuse or would constitute legal defences of the offending they may be seen as impacting on the offending. The ultimate interpretation of his offending at sentencing as solely based on angry and revengeful feelings may have insufficiently accounted for the evidence of a man with limited cognitive ability and evidence of additional deteriorating and fluctuating mental state.

[26] On the third issue, the extent to which the impairment may bear upon the hardship of the sentence, Dr Duff noted that people with limited cognitive skills generally have impaired abilities to adapt to changing circumstances and cope with additional stressors. She opined that this was evidenced in the initial difficulties Mr Smith experienced moving to New Zealand and then in his difficulties coping in prison. She concluded that the evidence of the current assessment reflected positive changes:

Mr Smith’s presentation and mental state at current assessment was improved compared to the reports of 2013 and even 2014. He is benefitting from adult education, enjoying his work programme and has successfully negotiated with prison officers to change cells when faced with a particularly difficult cell mate. His verbal communication skills have improved and his literacy skills are also improving. There was not therefore indication of insurmountable hardships from the current assessment. ...

First ground of appeal: appropriate discount for intellectual functioning, personality disorder and childhood abuse in the light of s 104

Submissions

[27] Mr Chisnall did not seek to challenge that s 104 of the Sentencing Act was engaged. Further, although he submitted that the weight afforded to s 104(1)(b) was reduced by Dr Duff’s conclusion that this was a murder committed by a man of limited cognitive ability at a time when his mental state was deteriorating, Mr Chisnall recognised that the presence of the s 104(1)(c) and (e) factors still required a starting point exceeding 17 years. It was accepted that an 18 year starting point for the MPI was appropriate,[9] and it was not suggested that the upper point of 19 years was outside the available range.
[28] Rather, Mr Chisnall submitted that the combination of Mr Smith’s intellectual functioning, personality disorder and childhood abuse made a 17 year MPI manifestly unjust. As Mr Chisnall’s submissions acknowledged, this aspect of the appeal largely hinged on Dr Duff’s report. While accepting that Dr Duff’s conclusion above[10] accorded with the information contained in three reports before Ronald Young J, Mr Chisnall submitted that Dr Duff’s report provided a more complete picture about the nexus between Mr Smith’s vulnerability to change, as a consequence of the way in which his personal characteristics intersect, and his offending.
[29] Noting E (CA689/10) v R[11] and R v M,[12] it was argued for Mr Smith that the report affirmed that his personal circumstances, including his mental impairment, “materially contributed” to the offending, thereby satisfying the degree of linkage required to access a reduction in sentence. Attention was drawn to the application of the same test where an evidential basis is established for concluding beyond a mere likelihood that an offender has been the subject of prolonged abuse.

Analysis

[30] Dr Duff’s report on this issue does not persuade us that there was any material omission in the Judge’s assessment. Her conclusions as to the link between the impairment and the offending are only tentatively expressed; she opines that Mr Smith’s personal circumstances “may be seen as impacting on the offending”, but do not “wholly explain or account” for the offending.[13] Further, Dr Duff’s reference to the interpretation of the offending being that anger and revengeful feelings were the sole foundation does not in our view accurately characterise the Judge’s assessment of the relevant factors.
[31] As Ms Markham for the Crown emphasised, the Judge’s comments specifically noted the roles played by Mr Smith’s “particularly rough” childhood, his limited intellectual functioning and poor literacy, and his long-term depression. To read the phrase “in the end” as synonymous with the proposition that anger and revengeful feelings were the sole basis for the offending misconstrues the Judge’s analysis. We agree with Ms Markham’s submission that the Judge’s analysis[14] is wholly consistent with Dr Duff’s view that the appellant’s personal circumstances “contributed” to but did not wholly explain the offending.
[32] Further, we consider that there is force in Ms Markham’s submissions that the mitigating effect of Mr Smith’s personal circumstances is moderated not only by the s 104 regime but also by other factors:
[33] We are unpersuaded that the Judge failed to adequately take into account the relevant features of Mr Smith’s personal circumstances in assessing the extent of a reduction from the MPI starting point and whether a 17-year MPI would be manifestly unjust.

Second ground of appeal: disproportionate severity under s 8(h) of the Sentencing Act

Submissions

[34] The Crown did not take issue with the general proposition that an increase in the “ordinary” hardship of imprisonment is a matter than can properly be taken into account in sentencing, but cautioned that in the s 104 context the weight that might attach to such a consideration is necessarily limited by the approach stipulated in R v Williams.[16]
[35] Mr Markham emphasised that Dr Duff observed Mr Smith had adjusted well to prison life in several respects, was embedded in a circle of support with Corrections and there was no indication of insurmountable hardships.[17]
[36] Two particular concerns were highlighted by Mr Chisnall, namely:

Analysis

[37] We are not persuaded that a person sentenced to imprisonment in New Zealand whose familial connections are in another country should thereby be entitled to some reduction in the otherwise appropriate sentence. This Court in Hamidzadeh v R considered the fact the appellant could speak little English and had no family support in New Zealand, even combined with other factors such as remorse and previous good character, were insufficient to displace the s 104 presumption.[18]
[38] Here, while we accept that there have been some difficulties in maintaining regular contact with his family in Jamaica, we note the Crown’s observation that Mr Smith immigrated to New Zealand, thereby choosing to leave his three children behind, and he evidently chose to remain in New Zealand after his relationship with Ms Taufale ended.[19] It is unclear what relationship he maintained with his Jamaican family prior to his imprisonment.
[39] On the second issue, Mr Chisnall drew attention to this Court’s endorsement in Va’alele v Parole Board that the fact a prisoner faces deportation should not affect whether Corrections provides rehabilitation to reduce the risk posed to the community.[20] However, in sentencing the Courts must necessarily proceed on the footing that appropriate policies will be established and followed. Any departure from such policies should be pursued in the appropriate administrative framework or, if necessary, by judicial review, not sought to be compensated for by a reduction in the otherwise appropriate sentence.
[40] Therefore we are not persuaded, on the grounds of appeal put forward by Mr Smith, that Ronald Young J was wrong to consider that a 17-year MPI would not be manifestly unjust.

Issues in Minute of 26 August 2016

[41] Finally we refer to the issues put forward in the President’s Minute of 26 August 2016.[21] The Minute was issued on the assumption that the present appeal might afford an appropriate context in which to properly address the issue of how provision should be made for a discount for a guilty plea in cases to which s 104 of the Sentencing Act applies. Previous decisions of the Court of Appeal have indicated views on this issue, but the matter has never been directly considered by a Permanent Court.[22] In response to that Minute both counsel provided detailed submissions.
[42] However, any broad approach to a guilty plea discount is always going to be tempered by the actual circumstances of the case. Our close review of this case leads us to the view that, from the starting point selected by Ronald Young J (which is not challenged), the appropriate level of discount to reflect the personal circumstances noted by the Judge and the eventual plea of guilty would not exceed a reduction of two years imprisonment, indeed arguably somewhat less. The Crown case was a

strong one,[23] and the plea was entered a year after his arrest when a trial had been set down.[24]

[43] Furthermore the Crown’s submissions noted that the presentence report records the appellant is yet to take responsibility for his offending, and doubted the sincerity of his expressions of remorse. Even in Dr Duff’s more recent report, the appellant is noted as presenting with “externalisation of blame” and as giving a “somewhat idealised” version of himself, while endeavouring to portray the deceased in a bad light. The Victim Impact Statements refer to the additional trauma occasioned by the belated acknowledgement of guilt.
[44] Consequently, we formed the view that this was not an appropriate case in which to revisit the wider issue and analyse the circumstances in which a reduction for a guilty plea which would bring the final MPI below the 17-year threshold mandated by s 104 should be entertained.
[45] When that view was conveyed to Mr Chisnall, he accepted that this appeal was not an appropriate vehicle to explore the question, albeit with the inevitable advocate’s regret. Consequently we did not receive further argument on that question.
[46] The argument which Mr Chisnall proposed to advance with reference to the second issue on which submissions were invited in the President’s Minute rested on the same propositions to be traversed on the first issue. In those circumstances we do not propose to consider it any further.

Result

[47] An extension of time to appeal is granted.

[48] The appeal against sentence is dismissed.







Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Smith [2013] NZHC 2782.

[2] It is unclear whether Mr Smith was wearing the hood or whether he placed it on Ms Taufale. The hood was found by police on her bed with blood stains on the lower edges.

[3] The reports of Dr Barry-Walsh, Dr Darling and Dr Heads (but not Dr Chaplow) were before Ronald Young J on sentencing.

[4] Smith, above n 1, at [23].

[5] At [16].

[6] At [18].

[7] Sub-average intelligence being an IQ of 70 or less.

[8] Those skills being: communication; self-care; home living; social skills; use of community services; self-direction; health and safety; reading, writing and arithmetic; and leisure and work.

[9] Citing Dawood v R [2013] NZCA 381 (starting point of 19 years) and Thurgood v R [2012] NZCA 23 (starting point of 18 and a half years).

[10] At [23].

[11] E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411.

[12] R v M [2008] NZCA 148.

[13] See [24]–[25] above.

[14] Set out at [18] above.

[15] R v M, above n 12, at [32].

[16] R v Williams [2004] NZCA 328; [2005] 2 NZLR 506 (CA) at [52]–[54].

[17] See [26] above.

[18] Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 at [86]–[87].

[19] Although he does now have a son in New Zealand, which might explain his remaining.

[20] Va’alele v Parole Board [2007] NZCA 535, [2008] NZAR 281.

[21] Referred to at [4] above.

[22] The issue of a guilty plea in the s 104 context has previously been: addressed by a Permanent Court in R v Williams, above n 16, at [69]–[74]; mentioned by a Full Court in Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [73]; considered by a Divisional Court in Malik v R [2015] NZCA 597 [25]–[37]; and referred to by a Full Court R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [154].

[23] It included Mr Smith’s DNA on a bloody glove found at the scene. The glove had a cut in the fabric corresponding to the location of a cut on Mr Smith’s hand when he was arrested.

[24] Although we acknowledge there were issues surrounding Mr Smith’s fitness to stand trial, Dr Barry-Walsh’s report mentioned at [14] above was available as early as 1 January 2013.

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