LACKNER v R [2016] NZCA 29

LACKNER v R [2016] NZCA 29 [25 February 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA299/2015[2016] NZCA 29BETWEEN CHARLIE LACKNERAppellantAND THE QUEENRespondentHearing: 10 February 2016Court: Miller, Fogarty and Toogood JJCounsel: C D Bean for AppellantI R Murray for RespondentJudgment: 25 February 2016 at 2.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Lackner appeals his sentence for the murder of his son Cassius Takiari. He says that the minimum period of imprisonment of 15 years is manifestly excessive.[2] Cassius was one of twins born on 14 October 2013. Mr Lackner shared the care of the children with his partner. On 15 June 2014 she went to work. When she returned home she found Mr Lackner holding Cassius, who was limp and had blood around his nose. Mr Lackner explained that he had slapped the baby. An ambulancewas called immediately, but Cassius did not survive. A post-mortem examination revealed that he had suffered severe head injuries, with the immediate cause of death being pressure on the brain from acute haematomas. Slapping could not explain the injuries. There were also indications of healing fractures, but we put these to one side.[3] For some reason it took eight months for the pathologist's report to be madeavailable. As soon as it was, Mr Lackner arranged to enter a guilty plea.[4] Sentencing him on 14 April 2014, Venning J recited the facts and concluded that poor parenting skills and an inability to control his temper led Mr Lackner to lash out.1 There was no dispute that Cassius was particularly vulnerable on account of age, so s 104(1)(g) of the Sentencing Act 2002 applied, meaning that a minimumperiod of 17 years' imprisonment must be imposed unless that would be manifestly unjust.[5] Venning J began by calculating the minimum period that would be appropriate apart from s 104. He noted the level of violence, the extent of loss and harm, the abuse of trust and authority, the vulnerability of the victim and the impact on Mr Lackner's partner and family. Against that, Mr Lackner had pleaded guiltyand was genuinely remorseful. The Crown suggested a minimum period of about 13 and a half years. The Judge concluded, however, that the minimum period could not be less than 15 years. He reached that figure by taking a starting point of 17 years and applying discounts of approximately 18 months for the guilty plea and six months for remorse. He considered whether it would be manifestly unjust in the circumstances to impose a minimum period of 17 years, and decided that it would.[6] On appeal, Mr Bean argued that a greater discount for the guilty plea ought to have been allowed and submitted that the discount for remorse was inadequate. He submitted that following the judgments of this Court and the Supreme Court in1 R v Lackner [2015] NZHC 690 at [8] and [10].Hessell v R it is appropriate to apply a full guilty plea discount together with a discount for remorse.2[7] However, the guilty plea and remorse discounts applicable to a determinate sentence do not apply directly to the calculation of minimum periods for murder, for reasons explained most recently in Malik v R.3 Section 104 circumscribes the discretion otherwise available to sentencing judges. As this Court held inR v Williams, which Venning J followed when calculating the minimum period, a minimum term of 17 years in a qualifying case is manifestly unjust where the sentencing judge decides as a matter of overall impression that the case falls outside the legislative policy underlying s 104.4 A guilty plea may make the 17-year minimum manifestly unjust,5 but personal factors such as remorse are not likely in themselves to have that effect.6[8] The discount that Venning J gave for the guilty plea was orthodox. It must be borne in mind that conviction was near-inevitable. Further, Mr Lackner did not needthe pathologist's report to tell him what he had done. He could have pleaded guiltyearlier.[9] The categories in s 104 capture some murders for which there may well be extenuating circumstances. Notably, s 104(1)(g) addresses a single characteristic of the victim — particular vulnerability — that is only one circumstance of the offence. The legislation does not preclude recognition of extenuating circumstances provided they cross the manifest injustice threshold. In this case there is room for sympathy. Mr Lackner acted out of frustration, there is a good deal to be said for his character, and he is genuinely remorseful. But any allowance must be limited by the legislative policy of protecting vulnerable people and deterring offenders. As Venning J noted, parents are expected to exercise self-control. We consider that the allowance he decided upon was appropriate.2 Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [28]; and Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].3 Malik v R [2015] NZCA 597 at [28].4 R v Williams [2005] 2 NZLR 506 (CA) at [67].5 At [93].6 Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 at [87]–[88].[10] We are not persuaded that the minimum period was manifestly excessive. The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent