CHRISTISON v R [2017] NZCA 168

CHRISTISON v R [2017] NZCA 168 [9 May 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA466/2016[2017] NZCA 168BETWEEN RAYMOND SHAYNE CHRISTISONAppellantAND THE QUEENRespondentHearing: 5 April 2017Court: Randerson, Clifford and Whata JJCounsel: L B Cordwell for AppellantJ C Pike QC for RespondentJudgment: 9 May 2017 at 9:30amJUDGMENT OF THE COURTA The application for an extension of time to file the appeal is granted.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] In late September 2013 Raymond Shayne Christison pleaded guilty in the District Court at Hastings to the murder of his former long-term partner, Gail Constant Bower. On 24 October that year, and following a disputed factshearing,1 Mr Christison was sentenced by Heath J in the High Court at Napier to life imprisonment with a minimum period of imprisonment (MPI) of 17 years.2[2] Mr Christison now appeals that sentence on the basis that MPI is manifestly unjust.[3] Mr Christison's appeal is well out of time. The Crown, however, raises noissues with that. We accordingly grant Mr Christison an extension of time to file his appeal.Facts[4] In February 2013 Mr Christison and Ms Bower separated after a long-term relationship of 23 years. There had been difficulties in the relationship for some time. In December 2004, Mr Christison had assaulted Ms Bower. He pleaded guilty to the crime of male assaults female and was ordered to come up for sentence if called upon. Around the same time, Ms Bower sought and obtained a temporary protection order. However, the substantive application was later withdrawn and Mr Christison and Ms Bower continued to live together.[5] As Heath J put it in his judgment on the disputed facts:3As the years progressed, conflict appears to have increased. While there is no evidence of any further physical assaults, there is much to establish psychological pressure being exerted on Ms Bower by Mr Christison, particularly in the latter years of their relationship. [6] Ms Bower, together with their son Matthew who still lived at home, left what had up to then been the home she had shared with Mr Christison. In the weeks that followed Ms Bower sought help from the police on several occasions, because of her concern for her safety at the hands of Mr Christison.[7] On 4 February 2013 Mr Christison texted Matthew. Amongst other things, he said that if he could not have Ms Bower no one else would either. In early1 R v Christison [2013] NZHC 2813 [Disputed facts judgment].2 R v Christison [2013] NZHC 2814 [Sentencing decision].3 Disputed facts judgment, above n 1, at [8].March 2013 Mr Christison was trespassed from the house Ms Bower had by then moved into with Matthew, after she had found him at her window one night. On 26 March 2013 a protection order was issued by the Hastings District Court in favour of Ms Bower against Mr Christison. A domestic violence alarm was installed at Ms Bower's address and she was given a safety pendant.[8] At the same time, the police also engaged with Mr Christison in an attempt to help him deal with what was, from his point of view, an unwelcome separation from his partner.[9] At around 8 pm on the evening of 7 June 2013 Matthew returned home after a short absence to find his mother lying dead at the front of the house. Mr Christison's mother was also there. The police arrived shortly thereafter.[10] It transpired that at about 2 pm that day Mr Christison's mother had taken hercar to Mr Christison's home, so that he could sell it for her. They had talked.Mr Christison had told his mother that he was having "angry thoughts" and that —referring to Ms Bower — he "just wanted to kill the bitch". Sometime laterMr Christison took a hunting knife from his wardrobe, gloves from his work shed and a beanie (into which he had cut eye holes to form a balaclava), and drove in hismother's car to Ms Bower's home. At around 7 pm neighbours heard female screams coming from a nearby, but unidentifiable, property. Around 8 pm Mr Christison called his mother. He told her he had "killed the bitch". At about thesame time Mr Christison had sent text messages to his new partner of six weeks,saying that he missed her and that he had "sorted the problem".[11] Mr Christison's mother then went to Ms Bower's home, together withMr Christison's new partner. She was unable to locate either of Ms Bower or Mr Christison. Mr Christison's mother described a second phone call in whichMr Christison told her where Ms Bower's body was. She returned to the house,located the body and phoned the police. It was at that time Matthew arrived on the scene.[12] It was apparent that Ms Bower had been subjected to a short but extremely violent attack. This resulted in her receiving a number of injuries, most of which were inflicted by a knife. The subsequent post-mortem found that:(a) There were three fractures to Ms Bower's ribs.(b) There were in all 23 stab wounds, 23 incised wounds, 11 scratches, six abrasions and eight bruises.(c) The incised wounds to the neck had severed all of the vital structures in that region, namely the main airway at the level of the voice box, the left carotid artery and the jugular venous systems.(d) Stab wounds to Ms Bower's lower chest/upper abdomen regioncaused damage to her right lung and her liver.(e) The wounds to Ms Bower's neck would have resulted in a rapid lossof consciousness and rapid immobilisation.(f) The wounds to Ms Bower's lower chest/upper abdomen region couldhave proved fatal on their own if taken in isolation.[13] Later that evening Mr Christison was found in a spa pool at the back of his property. He had a severely lacerated left wrist and throat, the result of self-inflicted injuries. Mr Christison was taken to the Hawke's Bay Hospital and later transferredto the Lower Hutt Hospital, where he underwent surgery for his wounds.[14] A dispute of facts arose following the entry of Mr Christison's guilty plea.The Crown wished to rely on three aggravating factors to submit, pursuant to s 104 of the Sentencing Act 2002, that the presumptive mandatory minimum term of 17 years' imprisonment applied to Mr Christison's murder of Ms Bower. Those factors were that Ms Bower's murder:(a) involved calculated or lengthy planning;(b) also involved the unlawful entry into, or unlawful presence in, a dwelling place; and(c) was committed with a high level of brutality, depravity or callousness.[15] Mr Christison disputed that those aggravating factors applied in his case. At the disputed facts hearing, Mr Christison explained his actions on 7 June 2013 in the following way. He had not gone to Ms Bower's home that evening intending to killher. Rather, upset by the separation and events that had followed it, he had gone to Ms Bower's house to scratch her car. He had taken the knife for that purpose. Hehad worn the gloves and balaclava to avoid detection in case the house was monitored by a surveillance camera. He had made scratches on the car and had then tried to look through a window into the house. At that point he heard the back door open and had crouched down to avoid detection. He saw Ms Bower come out of the house. He then saw her going towards the wood pile. She had called to him "is that you Shayne?" He had replied "yes it is", at which point he walked through the gatefrom the driveway and moved closer to the house. Ms Bower then hit him with apiece of wood, twice. He "lost it" and launched at Ms Bower.[16] The Judge did not find that explanation credible.4 Why would a person take a hunting knife to scratch a car? Mr Christison had the keys to his mother's car, andcould have used those. Why would Mr Christison look into the window if he was there, under the cover of darkness and disguised to avoid detection, to scratch Ms Bower's car? Given Ms Bower's fear of Mr Christison, his explanation that she had come towards him and then hit him with a piece of wood was incredible, and was one that Mr Christison retreated from in evidence.5[17] There is no challenge to Heath J's findings that the three s 104 aggravating factors asserted by the Crown were present.[18] Mr Christison's actions in taking a knife, gloves and adapted beanie withhim, driving to Ms Bower's house in his mother's car (a car she would not expect4 Disputed facts judgment, above n 1, at [24].5 At [25].him to be driving), parking some distance from the house and walking under the cover of darkness up to the house, manifest calculated planning. Mr Christison went onto Ms Bower's property, albeit on a driveway separated from the house by a gated fence, against the background of the protection order and trespass notice that had previously been obtained. Ms Bower was killed on a porch of the house. Mr Christison subsequently entered the house. Again, those facts speak for themselves as to the question of unlawful entry and unlawful presence in a dwelling place. The outcome of the post-mortem examination demonstrated a high level of brutality. As to callousness, the Judge commented:6The act of slitting the throat, when Mr Christison did not definitely know that Ms Bower dead, was callous. His behaviour in carrying out that act deliberately, leaving her having been stabbed, walking around the house and not calling for emergency assistance demonstrates that point.This was callous. The way in which Mr Christison went about the deliberate killing was to be abhorred. And the way in which the killing took place, one can only conclude, in that colloquial sense, that his soul was numb. He was in a hardened state of mind and lacked feeling and sensibility. In my view, the crime was committed callously and comes within the criteria for a presumptive minimum term of 17 years on that ground also.[19] Heath J sentenced Mr Christison later in the day of 24 October 2013. Starting with the presumptive MPI of 17 years, the Judge considered whether there were any aggravating or mitigating factors that might justify a minimum period of more or less than 17 years. The Judge first noted the three aggravating factors he had already identified.7 He then noted the further aggravating factors — the use of a disguise, the entry at night of a dwelling place, the fact that Mr Christison was armed with a weapon and the very high number of wounds that were inflicted.8[20] The Judge then turned to mitigating factors. He noted Mr Christison had entered a relatively early guilty plea, but ruled that the credit for that plea was dissipated by the fact that Mr Christison had undertaken a disputed fact hearing.9The Judge was particularly concerned with the need for Mr Christison's son to give6 At [26] and [39].7 Sentencing decision, above n 2, at [10].8 At [10].9 At [11].evidence and that the family had had to listen to graphic evidence relating to Ms Bower's death that it would have been preferable to avoid.10 Nevertheless, the Judge said he was prepared to take some account of the guilty plea. He did so for two reasons. First, whilst he had not accepted the evidence Mr Christison gave at the sentencing hearing, he did not think that, subjectively, Mr Christison was telling lies.11 He acknowledged Mr Christison's preparedness to take responsibility for his offending at an early time.12[21] The Judge accepted there was true remorse, which took the form of the attempted suicide.13[22] The Judge acknowledged that Mr Christison's actions were partly linked withthe depressive illness from which he suffered, and recognised a degree of diminished responsibility as a result.14[23] The Judge's assessment in his sentencing notes of the mitigating factors is tobe understood in the context of relevant remarks in his disputed facts judgment. There the Judge had found that Mr Christison had gone to Ms Bower's house to killher and had done so in a depressed state and with a muddled mind.15 The Judge commented that might be a form of explanation, but did not excuse Mr Christison'sactions.[24] The Judge concluded his sentencing remarks in the following terms:16[14] Rather than pick a relatively arbitrary number of years to reflect both aggravating and mitigating factors, I will simply say that I regard them as balancing each other out. For that reason, I propose to impose a minimum period of imprisonment of 17 years.[15] There is no need for me to consider whether that was manifestly unjust, given the reasons I have already given for doing so. They have taken into account all of the factors that could otherwise have been used to reduce the minimum period.10 At [11].11 At [12].12 At [12].13 At [13].14 At [13].15 Disputed facts judgment, above n 1, at [27].16 Sentencing decision, above n 2.Appeal[25] Mr Christison says his MPI of 17 years was manifestly unjust because the Judge failed to give him an appropriate credit for three mitigating factors. Those factors were:(a) his remorse;(b) his diminished responsibility; and(c) his guilty plea.[26] Discrete discounts should have been available for each of those mitigating factors:(a) at least two years for diminished responsibility;(b) at least six months for remorse; and(c) 18 months for the guilty plea.[27] Mr Christison then argues that, given his starting point sentence should not have exceeded 18 years, his MPI should have been in the range of 13 to 14 years to appropriately reflect his personal circumstances. On that basis, the MPI of 17 years imposed by the Judge was manifestly unjust.Analysis[28] Mr Christison's challenge to his sentence involves two distinct propositions.The first is that the starting point sentence, before considering matters personal to Mr Christison, should not have been more than 18 years. Second, the one-year discount that the Judge had by necessary inference allowed for those mitigating factors of remorse, diminished responsibility and guilty plea was insufficient, and made the 17-year MPI manifestly unjust. It is necessary to analyse those propositions separately. But both aspects of that analysis must take account of the context provided by s 104 of the Sentencing Act.Section 104[29] The approach to sentencing where s 104(1) is engaged is well-established. InHamidzadeh v R this Court described it as follows:17 Where one or more of the factors identified in s 104(1) is engaged, aminimum period of imprisonment of 17 years must be imposed unless it would be manifestly unjust to do so. In R v Williams, this Court considered the approach to be adopted to sentencing under that section. It was held that the specified minimum period may not be departed from lightly since effect must be given to the legislative policy of ensuring a 17 year minimum term for the most serious murder cases. The Court said:We conclude that a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare. As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing discounts based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.[30] In R v Gottermeyer this Court said similarly:18The expression "manifestly unjust" reinforces Parliament's purpose byemphasising that the bar for avoiding the 17 year minimum period, where applicable, is set at a high level. Unless the Court is satisfied that the 17 year minimum period would be "manifestly unjust" in the circumstancesof the particular case, it must be imposed. As this Court put it in R v Williams, the requirement is that "the injustice be clearly demonstrated before the Court can exercise its sentencing discretion to impose a sentence below 17 years". [31] Moreover, the approach to mitigating factors in the s 104 "manifestly unjust"assessment is different to the approach to those factors where the presumptive 17-year term does not apply. Thus, and as this Court observed separately inR v Williams:1917 Hamidzadeh v R [2012] NZCA 550 at [69] (footnotes omitted).18 R v Gottermeyer [2014] NZCA 205 at [76] (footnotes omitted).19 R v Williams [2005] 2 NZLR 506 (CA) at [66] and [73].(a) the presence of mitigating factors under s 9(2) of the Sentencing Act, relating to personal circumstances of an offender, would rarely displace the statutory presumption under s 104; and(b) discounts required for guilty pleas under s 104 may often be less than an ordinary case where the statute establishes no presumption that a sentence would be at a particular level: discounts of between one and two years are considered appropriate, in distinction to the 25 per cent allowed under Hessell v R20 where there is no statutory minimum period presumption.[32] As to the significance of mental illness, in Gottermeyer this Court observed:21There was also no dispute in this context that the mental health of a defendant may be a relevant mitigating factor. It is well-established that adefendant's mental health may reduce his or her moral culpability and thatthe requirements for general and specific deterrence may be moderated. When s 104 is engaged, a substantial deduction may still be appropriate.We do not agree, however, that Fogarty J erred in taking Mr Gottermeyer'smental health into account in the first stage of the process under s 104. As this Court made clear in R v Williams, the circumstances of the offender are relevant at that stage. But in Mr Gottermeyer's case, where it is acceptedthat his sanity was not in issue and we were not asked to revisit the question of his fitness to plead, his mental health problems do not prevent s 104(1)(e) from being engaged.[33] Against that background, we now analyse Mr Christison's two propositions.Starting point sentence[34] We do not accept Mr Christison's first proposition. We note first thatidentifying the presumptive minimum sentence as a "starting point" may riskoverlooking the special nature of the s 104 sentencing exercise. Moreover, thepresumptive MPI is "at least" 17 years. In our view, and given the range and seriousness of the s 104 aggravating factors present here, a starting point MPI (before consideration of mitigating factors) of 18 to 20 years would not have been20 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.21 R v Gottermeyer, above n 18, at [86] and [92] (footnotes omitted).out of range. Mr Christison's offending was carefully and deliberately planned.There was a high level of premeditation, reflected not only by his actions on that day,but also by his chilling remarks to his mother: first that he wanted to "kill the bitch"and secondly that he had done so. There were also, as demonstrated by the injuries Ms Bower suffered and the way in which Mr Christison cut her throat and left her to die, very high levels indeed of brutality and callousness. When assessing the significance of Mr Christison's entry into a dwelling place, proper recognition mustalso be given to the existence of the trespass notice and the protection order.[35] Many of the cases referred to by this Court in Gottermeyer support that conclusion.22 We note in particular the decisions in Dawood v R23 andThurgood v R.24Credit for mitigating factors[36] We turn then to the assertion that the Judge gave an inadequate credit for mitigating factors. We do not accept that assertion either.[37] We note first that the Judge carefully identified, and analysed the significance of, the three factors involved. There can be no suggestion that he overlooked any relevant factor. The Judge formed his overall impression as to manifest unjustness by balancing aggravating and mitigating factors. That he did so without identifying specific uplifts or discounts is not a reason to criticise his methodology: rather, it is the approach not infrequently taken by sentencing judges in this area.[38] As to possible movements, Mr Christison first says a two-year discount should have been given for his diminished responsibility, associated — as the Judge recognised — with the depressive illness he was diagnosed as suffering from by Dr Barry-Walsh.[39] Mr Snell (Mr Christison's counsel at that time) had instructedDr Barry-Walsh to complete an assessment of Mr Christison to determine whether he22 R v Gottermeyer, above n 18, at [80]–[81].23 Dawood v R [2013] NZCA 381. Leave to appeal to the Supreme Court was refused: Dawood v R [2013] NZSC 118.24 Thurgood v R [2012] NZCA 23.had a defence of insanity available to him, or whether he displayed any particular characteristic that would make him vulnerable to the provocative conduct he had spoken of.25 Mr Christison was interviewed by Dr Barry-Walsh on 25 July 2013 atthe Hawke's Bay Regional Prison. Dr Barry-Walsh based his reporting letter to Mr Snell (dated 5 September 2013) on that interview and on material relating to Mr Christison's subsequent treatment and psychiatric condition he obtained fromother caregivers.[40] When he first spoke to Mr Christison, Dr Barry-Walsh observed that whilst often sad and tearful, there was reactivity in Mr Christison's mood and he hadshowed flashes of humour. He had described an improving mood since his incarceration, better sleep, more energy and improvement in concentration, althoughhe "expressed persisting distress that he had lived because of what he had done". Atthat point, however, Dr Barry-Walsh assessed Mr Christison as not having thoughts of suicide.[41] When reviewed by a psychiatric nurse professional in mid-July 2013, Mr Christison was described as greeting her warmly and smiling appropriately. Whilst his sleep remained disturbed, and he was described as remaining stunned by the events, the psychiatric nurse did not think there was obvious mental health concerns and assessed Mr Christison at that time as not requiring further psychiatric input.[42] In late August 2013 Dr Young (a consultant psychiatrist) reviewed Mr Christison. At that point, Mr Christison was assessed as presenting with symptoms of a moderately severe depression, which had become apparent in the last few days for no clear reason.[43] Taken overall, in September 2013 Dr Barry-Walsh opined that Mr Christison had developed a depressive illness following the breakup in his relationship with Ms Bower which had "worsened in the weeks leading up to the offending and which had persisted, although it had probably fluctuated", following Mr Christison's25 That is a reference to an earlier allegation that Ms Bower may have in some way brought on Mr Christison's actions that evening by making derogatory remarks to Mr Christison. We note that this narrative was not repeated by Mr Christison at the disputed facts hearing.incarceration. Although constituting a disease of the mind within s 23 of the Crimes Act 1961, that depressive illness did not provide the basis for a defence of insanity. More generally, Dr Barry-Walsh opined with reference to his originalinstructions that "this depression may represent both mitigation and with reference toyour instructing letter a special characteristic". Dr Barry-Walsh further commentedthat "worsening anger and rumination are frequently accompaniments of depressionand it is likely notwithstanding a contextual element that his depressive illness contributed to the severity of his anger and rumination". Feelings of jealousy,insecurity and a desire to control contributed to the difficulty Mr Christison had experienced in accepting the end of the relationship. The doctor concluded:Together these things suggest there may have been aspects of Mr Christison's personality that also contributed to the alleged offending.As I have already commented I am unable to be more definitive about his personality functioning at this time.[44] Given the tentative nature of Dr Barry-Walsh's conclusions when taken overall, the reported assessments of the other professionals and the accepted factual narrative, we are not persuaded that Mr Christison's depressive illness can properlybe seen as having the effect on his culpability that the suggested two-year discrete discount would reflect. The position here is very different to that recognised by this Court in Gottermeyer, where a three-year discount was considered appropriate to recognise an undiagnosed psychotic condition.26 It is more similar to that considered in Hamidzadeh, where an adjustment disorder (a type of anxiety disorder) was not seen as requiring an adjustment in the s 104 context.27[45] Nor do we think Mr Christison can sustain his submission as regards the significance of his guilty plea. Here, the recognised band of one to two years allowance for a guilty plea must be considered in the context of the effect of the disputed facts hearing. The facts Mr Christison disputed were central to a proper assessment of culpability. We do not accept the suggestion made on Mr Christison'sbehalf that, in some way, the disputed facts hearing should have been conducted by the Crown so as to avoid the need to investigate the circumstances of Mr Christison'sviolent attack on his wife.26 Gottermeyer, above n 18, at [95].27 Hamidzadeh, above n 17, at [84].[46] Nor can the lack of any discrete discount for remorse, in these circumstances, result in the MPI of 17 years being manifestly unjust.Result[47] We grant Mr Christison an extension of time to file his appeal.[48] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent