PURUTANGA v R [2023] NZCA 442

PURUTANGA v R [2023] NZCA 442 [13 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA550/2022[2023] NZCA 442BETWEEN CORY PURUTANGAAppellantAND THE KINGRespondentHearing: 20 June 2023Court: Goddard, Brewer and Osborne JJCounsel: J E L Carruthers for AppellantR L Mann for RespondentJudgment: 13 September 2023 at 11.00 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] On 31 August 2022, Moore J sentenced Mr Purutanga, on one charge ofmurder, to life imprisonment with a minimum period of imprisonment (MPI) of17 years.11 R v P [2022] NZHC 2197.[2] Mr Purutanga appeals the length of his MPI.2 He submits it is manifestlyunjust. In particular, the Judge:(a) gave inadequate credit for Mr Purutanga's guilty plea; and(b) was unduly dismissive of Mr Purutanga's personal mitigating factors.[3] We must allow the appeal if satisfied that there is an error in the sentence andthat a different sentence should be imposed.Background[4] We reproduce Moore J's recitation of the facts of the offending:[4] H was your long-term partner. The two of you began your relationshipsome 15 years ago. You were teenagers at the time. When she was 16,H moved into your home with your parents. Approximately two years intoyour relationship, you and H had your first child together. You went on tohave another four more children together although one died shortly after hewas born. At the time you killed H your surviving children were aged 13, 10,4 and four months.[5] Your relationship was a volatile one. You commonly abused H bothverbally and physically. You hit her and you gave her "hidings". You werecontrolling, often preventing her from leaving the home or requiring her toreturn on those occasions when she did venture out.[6] On 16 December 2020, you were at home with H and your children.Sometime during the day, you badly beat her. You broke her nose and youcaused bruising to her scalp and face.[7] Later that evening, your eldest son contacted your mother asking herto come over. He feared you would have another "fight". Your mother video-called H. H signalled that she needed help. Plainly she was terrified youmight find out that she was talking with your mother. She was forced tocommunicate in a non-verbal way so you wouldn't hear and subject her tomore violence.[8] At around 9:15 pm, your mother arrived at your home. She attemptedto mediate. Because of your behaviour, she arranged for your father to pickup the two older children.[9] H went into one of the bedrooms with the two youngest children,while your mother attempted to distract you by keeping you in the kitchen.2 Mr Purutanga also appealed Lang J's refusal to grant him permanent name suppression:Purutanga v R [2022] NZHC 2616. He no longer pursues that appeal and so his interim namesuppression will lapse with the delivery of this judgment.H took this opportunity to dial 111 and request immediate assistance. She toldthe operator that if she hung up it was because you were coming.[10] At this point you realised that you were being distracted by yourmother. You charged past her and entered the bedroom. H could hear youcoming. She told the operator "here he comes" and hung up. You grabbedthe phone from H and saw that the 111 call had been made. Without sayinganything, you left the bedroom and went back to the kitchen. There youpicked up a large boning knife. You pushed your mother out of the way. Youwalked back to the bedroom.[11] H was lying on the bed. Your four-month-old baby was asleepbetween her legs. Your four-year-old child was awake in the room,presumably watching what was going on.[12] You leapt on top of H and began a frenzied attack using the boningknife. You repeatedly stabbed her upper body.[13] You inflicted a total of 17 stab wounds to H's neck, chest, abdomenand limbs. These included:(a) four stab wounds to her neck. These injured her right internaljugular vein, went through her trachea, cut through the fourthcervical vertebra and almost completely divided the cervicalspinal cord;(b) nine stab wounds to her chest and abdomen. These injuredmultiple internal organs and caused extensive internalbleeding; and(c) four stab wounds to other parts of her upper body, includingher left arm, right shoulder and right middle finger.[14] Your mother bravely tried to intervene to stop the attack. As she didyou sliced her hand.[15] You then left the property. You went to your parents' house. You toldyour father that you had "done bad" and that you were "going away for a longtime".[16] In the meantime, back at your home, neighbours arrived in a franticbut ultimately futile, attempt to save H's life. They gave her first aid.Emergency services were called. Despite everyone's best efforts, H died ofher injuries and was pronounced dead at the scene.[5] Before describing how Moore J decided that an MPI of 17 years should beimposed, we will briefly set out the legislative context.Legislation governing sentencing for murder[6] A person convicted of murder must be sentenced to life imprisonment unlessto do so would be manifestly unjust.3 It is not suggested in this case that Mr Purutangashould not be sentenced to life imprisonment.[7] Where an offender convicted of murder is sentenced to life imprisonment, theCourt must either order that the offender serve an MPI or order that the offender servethe sentence without parole.4 It is not suggested a fixed MPI is insufficient inMr Purutanga's case.[8] The Court must impose an MPI of at least 17 years if one or more of specifiedcircumstances apply, unless to do so would be manifestly unjust. The circumstancesare:5(a) if the murder was committed in an attempt to avoid the detection,prosecution, or conviction of any person for any offence or in anyother way to attempt to subvert the course of justice; or(b) if the murder involved calculated or lengthy planning, includingmaking an arrangement under which money or anything of valuepasses (or is intended to pass) from one person to another; or(c) if the murder involved the unlawful entry into, or unlawful presencein, a dwelling place; or(d) if the murder was committed in the course of another serious offence;or(e) if the murder was committed with a high level of brutality, cruelty,depravity, or callousness; or(ea) if the murder was committed as part of a terrorist act (as defined insection 5(1) of the Terrorism Suppression Act 2002); or(f) if the deceased was a constable or a prison officer acting in the courseof 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; or3 Sentencing Act 2002, s 102(1).4 Sections 103(1) and 103(2A).5 Section 104(1).(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.The sentencing[9] Justice Moore first decided what an appropriate MPI would be absent thestatutory requirements under s 104.6 The Judge identified five aggravating factorsbeing the victim's vulnerability, the breach of family trust, the degree of premeditation,the use of the large boning knife to inflict 17 wounds, and the targeting of the victim'sneck.7[10] Having considered comparator cases, the Judge considered a notional startingpoint for the MPI of 17 years and six months to be appropriate.8[11] Next, the Judge considered whether circumstances personal to Mr Purutangashould result in an adjustment.[12] The Judge acknowledged Mr Purutanga's plea of guilty and noted that,commonly, MPIs are discounted by one to two years to recognise pleas of guilty.The Judge allowed a one year discount. He said:9 I consider one year appropriate. This is not a case where you acknowledgedyour guilt from the beginning and pleaded guilty at the earliest practicalopportunity. The 18 months between H's death and you pleading guiltyincluded a number of adjournments of trial dates pending an expert report toexamine whether the defence of insanity was available to you, three changesof legal representation, refusals to participate or even engage in interviewsaddressing your fitness to plead and a plea of guilty entered just 10 days beforethe scheduled trial date. It is that combination which has led me to concludethat you are entitled to a discount only at the lower end.[13] The Judge then considered a cultural report on Mr Purutanga, a psychiatricreport and a pre-sentence report. The Judge concluded:[48] It follows I cannot uncritically accept that your offending was in partcaused by psychotic symptoms. Nor that you were sexually abused as a child6 The first of three steps suggested by this Court in Davis v R [2019] NZCA 40, [2019] 3 NZLR 43at [25].7 R v P, above n 1, at [26].8 At [36].9 At [39].and that the abuse precipitated a decline in your mental health and consequentdrug use. Put simply I cannot give these matters as much weight as mightotherwise be the case.[49] This is compounded by the fact that the Court's discretion to givecredit for personal factors such as these is restricted in murder cases.10General disadvantage in your upbringing relating to mental health issues anddrug use carries less weight.[50] In any event, much of your background has a limited nexus with youroffending. On any measure, this was a particularly brutal and callous murder.It does not seem that you were exposed to family violence as a child. Laterexposure to your peers engaging in family violence is of a different order ofseriousness. It is also notable that what you report took place in your lateteens, at a time when you were old enough to know better. You continuedmeting out violence to H despite your mother's efforts to stop you behavingin that way.[51] It follows that the aspects of your background described above do notmaterially mitigate your moral culpability for what you did.[14] The notional MPI the Judge found appropriate was 16 years and six months.11[15] The second step in the Judge's analysis was to decide whether any of the s 104circumstances are engaged. He concluded that one is.12 The murder was committedwith a high level of brutality, cruelty, depravity and callousness.13[16] The third step taken by the Judge, given that his notional MPI was six monthsless than the 17 years MPI presumed by s 104, was to consider whether an MPI of17 years would be manifestly unjust. The Judge concluded that an MPI of 17 yearswould include an element of recognition for the plea of guilty and would not bemanifestly unjust.14The appeal[17] Mr Carruthers, for Mr Purutanga, accepts that s 104 is engaged because of thebrutality of the murder. He also accepts that a notional starting point of 17 years andsix months was available to the Judge. But, he submits, a two year reduction for10 Hohua v R [2019] NZCA 533 at [44].11 R v P, above n 1, at [52].12 At [58].13 Sentencing Act, s 104(1)(e). The Judge did not reach a firm conclusion on whether vulnerabilityunder s 104(1)(g) was present, instead only noting that the victim was particularly vulnerable.14 R v P, above n 1, at [62]–[63].Mr Purutanga's guilty plea and personal circumstances was called for. An appropriateMPI would therefore have been around 15 years and six months. Therefore, he says,the MPI of 17 years imposed by Moore J is manifestly unjust.[18] Mr Carruthers first challenges the discount of one year given for the entry ofthe guilty plea. The submission is that the Judge was insufficiently nuanced in hisdescription of Mr Purutanga's behaviour leading to the guilty plea 10 days before thescheduled trial.[19] Mr Carruthers submits, and we accept, that it would not have been prudent forMr Purutanga to plead guilty until his mental health state at the time of the murder wasevaluated. That was done by Dr Dean. Mr Purutanga pleaded guilty three weeks afterreceiving Dr Dean's report.[20] Mr Carruthers submits also that Moore J placed too much weight on thepre-sentence report writer's observations about Mr Purutanga's lack of remorse andlack of concern for his children. Mr Carruthers points to passages in the reports ofMs Turner and Dr Dean which point to remorse and concern.[21] As to Mr Purutanga's background factors, Mr Carruthers submits:(a) Mr Purutanga's report of being sexually abused as a child was of courseself-reported and uncorroborated. But that is not surprising given thenature of what was reported. In March 2022, well before pleadingguilty, Mr Purutanga contacted ACC about receiving help.(b) Although there were assessments from two report writers pointing toMr Purutanga malingering, they did not conclude that he was doing nomore than cynically trying to evade liability. Dr Dean diagnosedMr Purutanga with methamphetamine withdrawal, possibly withsymptoms of psychosis. Mr Purutanga had considered suicide in 2016and on the night of the offending his father said he was making littlesense, acting erratically, tearful, and asking for help with his mentalhealth.[22] Mr Carruthers submits that an appropriate overall discount for the guilty pleaand personal factors would be around two years. The MPI should have been around15 years and six months. It would be manifestly unjust to impose an MPI of 17 yearsunder s 104 if the appropriate MPI is 15 years and six months: Mr Purutanga's guiltyplea and personal circumstances merit more recognition than a 17 year MPI wouldafford. Mr Carruthers referred to a number of cases, including a recent decision ofthis Court, where a 17 year MPI had been found to be manifestly unjust, and an MPIof 15 years and six months imposed.15Discussion[23] It is important to bear in mind that Mr Purutanga's sentence is lifeimprisonment. The MPI is not the sentence. It is the period Mr Purutanga must spendin prison before he can apply to the Parole Board to be released on parole.[24] We agree that s 104(1)(e) of the Act applies. Mr Purutanga's murder of hispartner was committed with a high level of brutality, cruelty and callousness. Theirfour-year-old child was in the room and saw their mother killed by their father in thisbrutal way, and saw their grandmother injured in a futile attempt to restrainMr Purutanga.[25] We consider also that s 104(1)(g) applies. The victim was particularlyvulnerable. She had been conditioned by years of violence from Mr Purutanga toaccept being beaten. Earlier in the day, while the children were at home, Mr Purutangabeat the victim badly, breaking her nose and bruising her face and scalp. The victimwas also vulnerable when she was attacked fatally because she was lying on the bedwith their four-month-old baby asleep between her legs.[26] It follows that Parliament's direction that the Court must impose an MPI of atleast 17 years applies. The exception — unless that would be manifestly unjust — isa high threshold. In R v Williams, this Court said:1615 Vea v R [2020] NZCA 68. See also R v Aporo HC Palmerston North CRI-2005-054-2872,20 October 2006; R v Fraser HC Christchurch CRI-2009-061-244, 9 July 2009; R v Garson [2020]NZHC 3259; and R v Peeni [2020] NZHC 1352.16 R v Williams [2005] 2 NZLR 506 (CA).[67] a minimum term of 17 years will be manifestly unjust where theJudge decides as a matter of overall impression that the case falls outside thescope of the legislative policy that murders with specified features aresufficiently serious to justify at least that term. That conclusion can be reachedonly if the circumstances of the offence and the offender are such that the casedoes not fall within the band of culpability of a qualifying murder. In thatsense they will be exceptional but such cases need not be rare. As well, theconclusion may be reached only on the basis of clearly demonstrable factorsthat withstand objective scrutiny. Judges must guard against allowingdiscounts based on favourable subjective views of the case. The sentencingdiscretion of Judges is limited in that respect.[68] Beyond that, what level of disparity amounts to manifest injusticeremains a matter of sound sentencing judgment that is not capable of precisedetermination. [27] In the recent decision of Frost v R, this Court explained (having quoted theabove passages from Williams):17[41] More generally, it has been recognised by this Court that the policybehind the legislative provisions for murder mean the discounts for personalmitigating factors have played "a lesser role" in murder sentencing. This isbecause s 103(2) signals Parliament's intention that the seriousness of theoffending is to be a sentencing court's focus when setting an MPI for murder.[28] Therefore, an MPI is not adjusted to take account of the personal factors of adefendant as though it were the sentence. Pleas of guilty are taken into account, as theSentencing Act requires, but there is a "settled pattern"18 of discounts in the range ofone to two years. This Court reaffirmed that pattern in Frost.19[29] In this case, the Judge allowed a discount of one year for the plea of guilty.He did so because of the 18 months that had elapsed since the murder before the pleawas entered, and because Mr Purutanga's conduct had contributed to delays inobtaining mental health reports.[30] There is another factor not mentioned by the Judge: the evidence againstMr Purutanga was overwhelming. Credit for a guilty plea is often reduced where theplea simply recognises the inevitable outcome.20 However in Frost, in a very similarsituation where final psychiatric reports were obtained shortly before trial, and pleas17 Frost v R [2023] NZCA 294 (footnotes omitted).18 At [43].19 At [89].20 See Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.of guilty were entered some three months later, this Court allowed a two-year discountdespite overwhelming evidence of guilt. We conclude that a strong Crown case doesnot preclude a discount of up to two years for the entry of a plea of guilty.[31] In this case, Mr Purutanga's conduct contributed to the delay in obtaining somereports. And his conduct prolonged the entering of a guilty plea. We accept thisdescription by Ms Mann for the Crown:216.3 Further, it is relevant to observe, following receipt of the expertopinion from Dr Dean, a pre-trial callover was organised on 7 June2022 for the purpose of arraignment. The victim's family were presentfor that hearing. Rather than plead guilty as expected, the defendantdispensed with the services of his second counsel and indicated hewished to proceed to trial. Lang J initially declined counsel leave towithdraw and made arrangements for the matter to be called beforethe allocated trial Judge when new counsel was assigned. At asubsequent telephone conference before Harland J, the appellantrefused to engage with counsel who then also sought leave towithdraw. Ultimately, in circumstances where the defendantappreciated the trial would not be adjourned again, he was arraignedon 16 June 2022.6.4 By the time of the arraignment Crown counsel's preparation for whatwas anticipated would be a five day trial, was largely complete.The nature of the evidence, including the appellant's mother'seyewitness account, was such the Crown anticipated its case would becomplete within three days. The only evidence anticipated to be ledfrom the victim's family members related to earlier violent offendingby the appellant against the victim.6.5 While there is no criticism of counsel for taking the cautious approachin ensuring an expert report was obtained addressing the issue ofinsanity, here, the appellant's wish to explore the defence is to be seenagainst Dr Dean's conclusion he had acted in a "undoubtedly deceitfuland uncooperative" manner post-arrest and that behaviour was"unrelated to a mental health condition".6.6 Against that background it cannot be said the appellant demonstratedparticular insight into the causes of his offending or genuine remorsefor his actions. Instead, he attempted, over a protracted period, tojustify his behaviour and divert responsibility. It is to be observed, atthe conclusion of sentencing, and in front of the victim's family inopen court, he shouted at his lawyer to appeal sentence immediately.[32] The calculation of credit for a guilty plea is not done according to amathematical formula. There is a strong element of judicial discretion. Although it21 (Footnotes omitted).would have been open to the Judge to give Mr Purutanga a greater discount than oneyear, he was not in error to decline to do so.Mr Purutanga's personal mitigating circumstances[33] The weight to be given to a defendant's personal mitigating circumstances in as 104 assessment of manifest injustice depends on how those circumstances affect thecore issue of culpability, or moral responsibility.[34] Having considered the reports on Mr Purutanga's background and mentalhealth, we do not find circumstances which materially decrease his culpability for theoffending, or lower his moral responsibility for it. To the contrary, the history of hisrelationship with the victim, including his behaviour on the day of the murder,demonstrate his high level of culpability and moral responsibility for the murder.[35] We accept the Crown's submissions:6.12 Here, the appellant, having voluntarily used methamphetamine in thedays preceding this offending, in an irritable and aggressive state,reacted in a retributive way when his partner sought the assistance ofpolice after an assault on her. There is no clear nexus between theappellant's earlier, somewhat limited mental health history, and hisoffending, the key drivers for which were his extensive drug use andpropensity for violence against his partner.6.13 It is relevant to observe the appellant has had the support of a closeand loving family throughout his lifetime. He was not exposed toviolence during his own childhood. While voluntarily associating fora period of time with gangs, the appellant enjoyed the ongoing supportof his parents who assisted him both materially and also by way oftheir constant pro-social influence. It is to be observed the appellanthas had active assistance from his parents throughout his life to obtainassistance for his methamphetamine use and his propensity forviolence towards his partner.[36] The Judge did not err in deciding not to give a further discount forMr Purutanga's personal circumstances.Is an MPI of 17 years manifestly unjust?[37] The Judge assessed the starting or notional MPI as 17 years six months.He emphasised the brutality of the murder. On our assessment, taking into accountthose factors and also the particular vulnerability of the victim, we consider a startingMPI of 18 years was within range.[38] We have concluded that the one year discount for the defendant's plea of guiltyallowed by the Judge was within the range available. On the Judge's assessment ofthe MPI starting point, an MPI of 16 years and six months was within range. On ourassessment of the MPI starting point, the MPI would be 17 years. Even if the fulltwo years discount for the plea of guilty was available, then on our analysis thenotional MPI would reduce to 16 years. But on the facts of this case, the differencebetween a 16 years MPI and a 17 years MPI would not make the latter manifestlyunjust.[39] We emphasise that this assessment is not simply a matter of mathematicalcomparison. We have to apply the high threshold of "manifestly unjust" in the factualcontext of all of the circumstances of the offending and the offender. A murdercommitted by a young person, or by a person with a relevant and operative psychosis,are contexts, for example, which can bear on what is manifestly unjust. All sentenceshave to be tailored to the individual defendant in the unique circumstances of theircase. And a sentencing court has always to stand back and decide whether the endsentence, including any MPI, as calculated is a just one.[40] Here — adopting the phrasing in Williams which we quote at [26] — thecircumstances of the offence and the offender are not such that the case falls outsidethe level of culpability of a qualifying murder under s 104 of the Sentencing Act.Taking into account all the circumstances of the offence and the offender, we concludethat a 17 year MPI is not manifestly unjust.Decision[41] The appeal is dismissed.Solicitors:Hamilton Legal, Hamilton for Respondent