Blake v R [2016] NZCA 82 (23 March 2016)

Last Updated: 1 April 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA432/2015 [2016] NZCA 82
BETWEEN	DAVID BLAKE Appellant
AND	THE QUEEN Respondent

Hearing:	3 March 2016
Court:	Wild, Miller and Winkelmann JJ
Counsel:	P M Keegan for Appellant M J Lillico and Y Moinfar for Respondent
Judgment:	23 March 2016 at 3.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

[1] Mr Blake appeals the minimum period of imprisonment, 16 years, imposed in connection with his life sentence for the murder of his 71 year old mother, Gwendoline Blake.^[1]
[2] The sentencing Judge, Ellis J, found that s 104(1)(e) of the Sentencing Act 2002 applied because the murder was committed with a high level of brutality and callousness. That being so, she took 17 years as the starting point for the minimum period and deducted a year for Mr Blake’s guilty plea to arrive at 16 years. Mr Blake says that the crime was not sufficiently brutal, cruel or callous to engage s 104 and a lesser starting point ought to have been chosen. He also says that the discount given for the guilty plea was inadequate.

The facts

[3] Sentencing proceeded on an agreed summary of facts. On 30 January 2015 Mr Blake had been drinking with friends. During the evening he returned to his mother’s home, where he was living in a caravan. The relationship between him and his mother was strained.
[4] An argument developed. Mr Blake pulled the phone and power cable out of the wall socket. He struck his mother across the mouth with the back of his hand and delivered at least three forceful blows to her head, on one occasion using some kind of blunt object. Her nose was broken and extensive bruising was found on her forehead and on the sides and top of her head. Her arms and hands were also bruised.
[5] The blows caused Mrs Blake to fall to the floor, where she lay on her back. Mr Blake then used a large kitchen knife to stab her three times: once to the base of her throat; once to her right eye socket, severing the optic nerve; and once to her left eye, penetrating a few millimetres. None of these wounds was immediately
life-threatening. Mrs Blake died because vomit obstructed her airways and her gag reflex did not respond.
[6] Afterward, Mr Blake went to his neighbour’s house and told them that he thought he had killed his mother and had started digging a hole. A freshly dug shallow hole was later found by his caravan. He asked a male neighbour to come with him to check on his mother, and told the female neighbour not to say anything. The male neighbour called the police.
[7] When the police arrived Mr Blake was waiting. He told the police: “my dad died, my missus left me, my mum was blackmailing me, then I killed her. I’m sorry I did that”. In a later DVD interview he told the police that his mother deserved everything she got and that it felt really good when he hit her.

The sentencing

[8] The pre-sentence report recorded that Mr Blake stated he had no recollection of the offending but he accepted responsibility for it and appeared remorseful. He was unable to explain his actions. A psychiatric report had been prepared at the request of defence counsel. It identified no symptoms of mental illness but noted that Mr Blake appeared to have longstanding serious tensions and difficulties in his relationship with his mother. Also before the Judge were his previous convictions, which include convictions for wilful damage, common assault and male assaults female.
[9] Sentencing proceeded in an unusual manner. Mr Blake was sentenced formally in open court after submissions had been made, but at his request the victim impact statements were read in his absence. That was because of tension between him and his family members. There was reason to believe that he would take exception to the reading of some parts of the victim impact statements. This was a sensible procedure in the circumstances, and like the Judge we attach no significance to it for present purposes.
[10] Justice Ellis referred to s 103 of the Sentencing Act and drew attention to a number of aggravating features: the use of at least one weapon; the extreme loss, damage and harm caused to his family; and the fact that Mrs Blake was in her own home where she ought to have felt safe. She did not consider the murder premeditated or give previous convictions any significant weight, and she accepted that he was remorseful notwithstanding things that he had said and done immediately after the murder.
[11] Turning to s 104, the Judge said:^[2]

In this case there is no doubt that the way in which you killed your mother was brutal. She was a 71 year old woman with a number of physical infirmities. She had no chance of fighting back. You were her son who should have protected her. Instead, and for no reason, you hit her very hard about the face and head a number of times, eventually causing her to fall over and rendering her unconscious. And then you took a knife and deliberately stabbed her eyes and neck. Even if the medical evidence does not permit a firm conclusion that she was still alive and that you must therefore have intended to cause her extra suffering by those acts, there can be no doubt that those acts were gratuitous, and your intention must have been a callous one, an intention to mutilate and disfigure.

(Footnotes omitted)

[12] She concluded that the brutality and callousness of the crime were sufficient to engage s 104, meaning that a minimum period of 17 years must be imposed unless that would be manifestly unjust. As to that, Mr Blake had pleaded guilty at an early stage, although the case was overwhelming and Ellis J considered there might be some truth in family allegations that a guilty plea was the easy way out for him. Accordingly, she allowed a deduction of one year from the 17 year starting point.

Section 104(1)(e)

[13] In R v Gottermeyer, this Court analysed s 104, stating that a court needs to examine carefully the prescribed circumstances in the context of the particular case and noting the following features of the section:^[3]

(a) It contains, in 10 subparagraphs, nine defined circumstances requiring the imposition of a minimum period of 17 years unless it would be manifestly unjust.

(b) Each of the first nine defined circumstances describes a different feature of the murder.

(c) As the tenth circumstance makes clear, each of the first nine circumstances is “exceptional”.

(d) The tenth circumstance recognises that the list is not exhaustive.

(e) One or more of the circumstances may apply in a particular case.

(f) Most of the nine circumstances include further variations within them.

(g) Several of the circumstances require the Court to make evaluative judgments before deciding that they apply: (b) (“calculated or lengthy” planning); (d) (another “serious” offence); (e) (a “high level” of brutality, cruelty, depravity, or callousness); (g) (“particularly” vulnerable); and (i) (other “exceptional” circumstances).

(Footnotes omitted)

[14] Turning to s 104(1)(e), the Court made the following points:^[4]

(a) There is no particular difficulty involved in the meaning of the expressions “brutality” (savage violence), “cruelty” (callous indifference), “depravity” (moral corruption) and “callousness” (insensitive and cruel disregard for others).

(b) The meanings of “cruelty” and “callousness” overlap, at least to some extent.

(c) The four expressions describe the nature of the murder in objective terms. The focus is on the manner in which the murder was actually committed. Issues of planning and victim vulnerability, which are covered separately in s 104(1)(b) and (g) respectively, are not to the forefront in the context of s 104(1)(e).

(d) The brutality, cruelty, depravity or callousness must be at a “high level”. As this Court has pointed out many murders will involve elements of brutality, cruelty, depravity or callousness, but only those that involve one or more of those elements to “a high level” will be within s 104(1)(e). The Courts are therefore required to distinguish between different murders depending on the level of brutality, cruelty, depravity or callousness involved in them.

(Footnotes omitted)

[15] It will be seen that the question whether brutality, cruelty, depravity or callousness is of a “high level” requires an evaluative judgment. The legislation recognises that many “ordinary” murders will exhibit one or more of these elements to some degree. It is important not to conflate the separate statutory circumstances when deciding whether any one of them applies.
[16] We turn to the evaluation. Mr Keegan acknowledged that Ellis J referred to a

number of comparable cases, but submitted that those cases were much more egregious than this one.^[5] He drew attention to other cases.^[6] Counsel emphasised that in this case there was no evidence that Mrs Blake was alive or conscious when the stab wounds were inflicted and he submitted that the Judge was wrong to conclude that the wounds were inflicted with an intention to cause extra suffering. An assault consisting of three forceful blows and the infliction of three stab wounds is brutal, but not sufficiently so to engage s 104. There is no evidence that the assault was prolonged. There was no meaningful attempt to conceal the crime; on the contrary, Mr Blake went to his neighbour to seek assistance and he remained at the scene waiting for the police and took responsibility for what he had done. He expressed remorse.

[17] We acknowledge these submissions, but we consider that Ellis J was correct to decide that the murder engaged s 104(1)(e). It was a brutal crime because of the attack on a defenceless woman in her home and the use of a weapon. What brings it within s 104 is the stabbing of her eyes and neck. She was helpless at the time. We agree with the Judge that these were gratuitous acts that exhibited a callous intention to mutilate and disfigure. Mr Blake’s actions after the offending are also relevant, although they would not suffice in themselves to engage s 104; his comments that she deserved everything she got, that he was glad he had smacked her, and that it felt really good together exhibited a substantial degree of callousness. These statements were made after her death, of course, but they are part of the circumstances of the murder.

The guilty plea discount

[18] Mr Keegan sought to develop an argument, by reference to this Court’s judgment in Hessell v R, that a guilty plea justifies a larger discount than the minimum period given in this case.^[7] The discount given by Ellis J was orthodox, however, and this is not the appropriate occasion to embark on a review of sentencing practices with respect to minimum periods of imprisonment.

The decision

[19] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Blake [2015] NZHC 1714.

^[2] R v Blake, above n 1, at [32].

^[3] R v Gottermeyer [2014] NZCA 205 at [77].

^[4] R v Gottermeyer, above n 2, at [79].

^[5] Dawood v R [2013] NZCA 381; Thurgood v R [2012] NZCA 23; and R v Zhou HC Auckland CRI-2005-092-10395, 13 October 2006.

^[6] R v Williams [2005] NZLR 506 (CA); R v Rukuata HC Auckland CRI-2005-092-13891, 29 May 2005; R v Seau HC Auckland CRI-2006-092-18372, 17 April 2008; and R v Lamont HC Greymouth CRI-2009-018-702, 16 December 2010.

^[7] Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.