R v Findlay [2017] NZHC 2551

R v Findlay [2017] NZHC 2551 [17 October 2017]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2016-012-000832[2017] NZHC 2551REGINAvSTEPHEN FINDLAYHearing: 17 October 2017Appearances: R P Bates and C E R Power for the CrownJ M Ablett-Kerr QC and C J Medlicott for the DefendantDate: 17 October 2017SENTENCING NOTES OF DUNNINGHAM JIntroduction[1] Steven Findlay you appear for sentence today having pleaded guilty to the murder of Sharon Comerford on 7 March 2016.Background to offending[2] The circumstances in which this crime occurred can be traced back to when you moved to Seacliff, a small rural community some 29 kilometres from Dunedin, several years ago. You purchased a section adjacent to the victim's house for $22,000, which was your life savings, and you lived there in your house truck.[3] Both you and the victim drank alcohol excessively resulting in numerous arguments between you.[4] You had told others that the victim was harassing you, shouting at you and would not leave you alone and that she was mad, crazy, driving you insane and that she deserved to die. You spoke to several people about killing the victim, but it seems that these threats were not taken seriously.[5] Various events happened in February 2016 which exacerbated these tensions. You had lost your cell-phone and, on 8 February, you became aware that the victim had possession of it and she had been contacting a female friend of yours. You thought the victim had ruined your chances of starting a relationship with this person.[6] On 18 February 2016 you contacted local police seeking a trespass order against the victim, although ultimately you did not proceed with that.[7] On 20 February 2016 you sent several texts to the local police officer complaining of numerous abusive texts from the victim and police spoke with her.She acknowledged that she had done a "stupid thing" after being handed your lostcell-phone and she said she had sent texts to people in your contact list to let them know what you are really like.[8] On 26 February 2016 you again telephoned the police and said you had trespassed the victim and that you had had six years of hell from the victim. You referred to losing your cell-phone and said that the victim had contacted a long termfriend of yours. You said to the police operator that you had "just had enough", that you were over it and that she had driven you "to the edge".[9] On the morning of 7 March 2016 at about 10.00 am you walked several kilometres to a store at Karitane where you purchased a cask of wine. You then walked home to Seacliff. That afternoon you texted the local police officer againcomplaining about the victim, saying that she had "shaved me very close with hervehicle while I was walking home" and that she did this "deliberately to intimidate".[10] A short time later you telephoned the local crime reporting line and made a similar complaint.[11] At about 7.00 pm you went to her home and you smashed both the headlights of her Nissan light truck as well as a window beside the front door. At a later point in the evening two witnesses heard shouting and arguing from inside her house. An attack then ensued in which you struck the victim on the head with a blunt instrument approximately 12 times, causing full thickness scalp wounds. The sustained beating caused significant deformations in the victim's skull.[12] The victim also suffered a fracture in her cheek bone and bruising to the back of both hands, forearms, left eye and shin. The pathologist considers that the beating was inevitably lethal and the victim was likely to have been unconscious and on the ground from the early stages of the assault. The victim may have survived for a short time.[13] You then left the victim's home and returned to your house truck. The jeans you were wearing had blood on them and you changed them. That blood was subsequently confirmed as being from both the victim and from you.[14] At approximately 5.00 am the following morning you sent a text message to a female friend asking her to call you immediately but as you entered the wrong number it was not replied to.[15] You then made your way to Truby King Reserve near where you live. You took a .308 riffle with you. You sat down beside a tree, placed the rifle in your mouth and pulled the trigger. The blast of the gunshot wound caused significant damage to your face and head, including removing part of your nose and an eye.[16] Fortunately a local resident was walking her dog in the area early that morning and she alerted emergency services. Because of the initial state of your injuries, a death statement was taken at the time, where you alleged that the victim"whacked" you. You were then flown to Dunedin hospital where you underwent surgery.[17] The victim was found by police that morning lying deceased on the floor of her home.[18] It seems that to this day you have no recollection of what occurred on that evening, which may be due to the injury you suffered or to your alcohol intake. However, you accept the evidence that you were responsible for Ms Comerford'sdeath.Victim impact statements[19] I have received four victim impact statements from family members; and of course we have heard those read out from the two sisters today.[20] The deceased's sister, Deborah Ogle, acknowledges a level of estrangement with her sister but says she had had a loving relationship with her in the past. She describes her sister as talented and clever, and she was hoping to reconnect with her. That possibility has now been taken away. She describes in detail how the horrificmanner of her sister's death has affected every aspect of her life, physically and mentally, and it has left her anxious and depressed.[21] Her twin sister Jacqueline Comerford also acknowledges that she had been estranged from her sister, but that has not diminished the loss. In particular, she feels the horror of the way that Sharon died. It has made her unable to function in the way that she did before. It has cost her employment opportunities. She is depressed, anxious, angry and sad.[22] Her 77 year old mother has also provided a victim impact statement. She cannot bear to think of the way her daughter has died, and the stress of this impending Court case has affected her life greatly.[23] Her stepfather, too, who knew the victim from when she was 13, hasexplained the impact of Sharon's death on him. His health has suffered, and he has trouble sleeping as a result of the stress that this has caused.[24] As I said at the sentencing indication last week, these victim impact statements remind us of the interconnectedness of people. Every death has deep and ongoing consequences for other people, and robs something from them and their lives, too, particularly when a life is cut short in such a brutal way as here.Your personal circumstances[25] I turn now to talk about you.[26] As agreed with counsel last week, I have not sought a pre-sentence report for the purpose of sentencing. Instead, I have relied on the full psychiatric report prepared by Dr Russell Wyness which gives me some insight into your background and your personal circumstances. It outlines the stressful events that you suffered in recent years and the difficulties you reported experiencing with the victim.[27] You are now 61 years of age and you have clearly had some setbacks in your life. These include physical violence in your upbringing, a motorbike accident some 20 years ago which left you a sickness beneficiary and experiencing ongoing pain.You suffered the permanent loss of your drivers' licence in 2014 for driving withexcess blood alcohol and careless driving. However, as your psychiatrist notes, while there have been some relationship instability, employment problems and substance abuse, there has been no previous history of violence. Indeed, your only convictions stem from drink driving which reflects your battle with alcohol. I note that this is consistent with the tenor of the witness statements of those who knew you, in them you are described as "gentle", "quiet", "amiable" and "artistic".[28] Dr Wyness also outlines the impacts of your head injury. He explains that your vision is affected by the loss of your left eye and you have some permanent, but mild, cognitive impairment. He considers if you were placed in a supported community designed for the rehabilitation of persons such as yourself after imprisonment, then any risk factors of reoffending would be reduced. I accept that you are not likely to pose an ongoing risk to the community, particularly if your addiction to alcohol is addressed.Issues in sentencing[29] In sentencing you today, I must impose a life sentence unless I consider that would be manifestly unjust. I am also required by law to determine the minimum period you will spend in prison before you become eligible for release on parole. The minimum period of imprisonment for murder is normally 10 years, but unders 104 of the Sentencing Act it is required to be 17 years or more if the murder has one or more of the aggravating features listed in that section. In that case I must sentence you to a 17 year minimum period of imprisonment unless it would be manifestly unjust to do so.[30] In light of all that, the key issues I have had to consider in sentencing you are whether:(a) s 104 of the Sentencing Act 2002 applies; and(b) if it does, whether the circumstances are such that it would be manifestly unjust to impose the minimum period of imprisonment of 17 years; and(c) regardless of s 104, whether there is any reason not to impose a life sentence on you.Is s 104 engaged?[31] I deal first with the application of s 104.Crown submissions on s 104[32] The Crown has explained that the aggravating features of your offending are:- there was some premeditation;- your response was disproportionate to the issues that faced you;- you damaged the victim's car and window before you attacked her showing you were angry;- the victim was vulnerable and alone;- you used some form of blunt weapon to assault her;- the attack involved multiple blows; and- you then disposed of the weapon;However, the Crown does acknowledge the mitigating features, and in particular, the aspect of provocation.[33] In this case, the Crown says s 104(1)(e) is engaged because there was a high level of brutality. Mr Bates refers me in his submissions to seven different cases1where a high level of brutality was found, and he says that this case is comparable to them. In particular, he points to the fact that there were multiple injuries inflicted on this victim. There were 12 wounds to the head and most were inflicted when the victim was on the floor and quite likely unconscious.Defence submissions on s 104[34] Your lawyer, however, says that a high level of brutality was not met in this instance. She reminds me that brutality is a common feature of the crime of murder and s 104 is only intended to capture the top end of cases. It is not something to be calculated mechanically, for example, by the number of blows that were inflicted. For example, she refers me to the case of R v Schofield,2 where seven blows were inflicted to the victim's head with a hammer, but the Court agreed that the circumstances did not reach the threshold of a high level of brutality.Conclusion[35] I accept that all murders involve some degree of brutality, or cruelty, or depravity or callousness and that what s 104(1)(e) requires is for one or more of these factors to be at the top end. The brutality must involve "savage violence"before it engages s 104.3 However, in this case, I accept that s 104 is engaged. I say this because:1 R v Gottermeyer [2014] NZCA 205; R v Churchward and Te Wini CRI-2008-270-361, HC Tauranga, 18 December 2009; Skilling v R [2011] NZCA 462; Wallace v R [2010] NZCA 46;Pandey-Johnson v R [2012] NZCA 595; R v Uluakiloa CA123/06 6 December 2006;Wyjuana Smith v R [2016] NZHC 2581.2 R v Schofield [2015] NZHC 2109.3 R v Gottermeyer at [79].(a) there were 12 injuries to the head identified;(b) these were not superficial injuries, but were full thickness scalp injuries;(c) most of the injuries were inflicted while the victim was already on the ground; and(d) they were of sufficient severity that the pathologist described the scalpas suffering from "severe deformation".For these reasons, I consider s 104 is engaged on the aspect of a high level of brutality. In light of that finding, the presumptive sentence is a life sentence with a 17 year minimum period of imprisonment.What sentence should be imposed?[36] Your lawyer has submitted, first, that this is a case where a life sentence need not be imposed because it would be manifestly unjust to do so. She has taken me to the test in R v Rapira.4 In that case, it was said that a conclusion that a sentence would be manifestly unjust:Has to be made on the basis of the circumstances of the offence and the offender. It is an overall assessment. The injustice must be clear, as the useof "manifestly" requires... It is a conclusion likely to be reached in exceptional cases only...[37] Even if I do not consider it would be manifestly unjust to impose a life sentence then the same considerations would, in your lawyer's submission, make itmanifestly unjust to impose a minimum period of imprisonment of 17 years if I find that s 104 applies.Defence submissions[38] In your case your lawyer makes the following points:4 R v Rapira [2003] 3 NZLR 794 (CA) [121].(a) You are entitled to considerable credit for a guilty plea. She explains the delay in offering this guilty plea. You had, and still have, no memory of the events of 7 March from the afternoon of that day until well after your surgery. You were initially charged with shooting the victim. The police were not able to work out that a gun was not used until some time later. And, your lawyer explains that it was only on receipt of further scientific evidence to confirm the Crown evidence, that was received shortly before trial, that meant you were in a position to plead guilty to the charge;(b) Your lawyer also says, of course, that there can be no greater remorse demonstrated than by the actions you took that morning;(c) She also explains that the offending took place against six years of provocative conduct. She says this provocation involved physical altercations, such as pulling you hair out, and psychological abuse. She notes that the victim was diagnosed as being bi-polar, and was an alcoholic. She subjected you to constant abuse but this escalated in February. She has pointed me to an example of this in the torrent of text messages that were sent around 17 and 18 February. In them the victim describes you in all sorts of derogatory terms, including as "aloser", and that your lady friend did not want you. Your only response was one text asking her to stop sending these texts;(d) Your lawyer also notes that alcohol was inevitably part of the context of the offending, although, of course, that is not a mitigating factor in itself;(e) She says, however, that you were poorly equipped to deal with the situation you found yourself in. You were someone who wanted to withdraw from society and lead a peaceful and quiet life, and that was impossible with the victim as your neighbour;(f) She then also emphasised that you have experienced life changing injuries. These are making your time in prison harder than it would be otherwise and will continue to affect you, even on your release.[39] In summary, your lawyer described you as;a sensitive man who was himself vulnerable and had, as he had unwittinglyprophesised to the police call operator in February, been "driven to the edge" by the deceased's abuse.[40] Your lawyer acknowledges that the category of cases where less than a life sentence has been imposed have been limited to date to mercy killings,5 cases where there has been a history of abuse,6 or cases where the defendant was a secondary party who played a peripheral role in the killing.7 However, she says that there is nothing to preclude severe provocation, which she says occurred in this case, from being a circumstance which would make it manifestly unjust to impose a life sentence.[41] Even if that is not the case, then she says the combination of factors she has outlined would make it manifestly unjust to impose a 17 year minimum period of imprisonment and instead a 10 year minimum period of imprisonment should be imposed.Crown submissions[42] The Crown accepts that your guilty plea is relevant to this issue and that it would be unjust to impose a minimum period of imprisonment of 17 years in light of the three week trial being avoided. It also accepts that the severity of the injuries that you have suffered are relevant to whether it would be manifestly unjust to imprison you for 17 years minimum. Finally, the Crown acknowledges that even though this case reaches the threshold of s 104, it is at the lower end of such cases.[43] So, the Crown says that, in all the circumstances, I could consider a lower minimum period of imprisonment of around 12-14 years.5 R v Law (2002) 19 CRNZ 500 (HC).6 R v Rihia [2012] NZHC 2720.7 R v Cunnard [2014] NZCA 138.Discussion[44] I start with your lawyer's submission that, given the extent of the provocation in this case, it is a case where a sentence less than life imprisonment could be imposed. In my view, I do not think that this is the case for that. A life was taken and it was a brutal murder. I think that you must confront the possibility that you could remain in prison for the rest of your life for that murder.[45] I then turn to the minimum period of imprisonment. If I have regard only to the aggravating features of your offending which are the brutality, the disproportionate reaction to what happened, the use of a weapon, the head injury and the property destruction, then a minimum period of imprisonment of 17 years would be high, but would not reach the threshold of being manifestly unjust.[46] However, I accept that there are a range of mitigating factors in this case which must be taken into account.[47] I accept there was a significant level of provocation. This was not isolated provocation, this was an ongoing stream of provocation. I consider that you had endeavoured to use acceptable methods for dealing with this, including going to the police, but these had not been successful. You are not the only one who had experienced such problems with the victim. Neighbours and other associates variously described the victim in evidence as "difficult", and "volatile particularly when drinking". I also accept your lawyer's submission that you did not have theability to remove yourself from the situation given your health and your financial circumstances.[48] I also accept that your guilty plea must be given credit. While it was on the eve of the trial, I accept that was explicable given your inability to recall what happened and the time it took to produce the evidence which confirmed the circumstances of her death. I also think that, having regard to the victim impact statements, avoiding the stress of a long trial is something which should be accorded some credit.[49] Finally for me, the key issue is remorse. It is self-evident to all who are in this Court that the punishment you have inflicted on yourself is life-long and it is in addition to any prison sentence. Even on release, you will have to live with the brain injury and the permanent physical disfigurement that has resulted.[50] Taking into account your remorse, your guilty plea, the far reaching consequences of your self-inflicted injury, and also the level of provocation experienced by you, I consider it would be manifestly unjust to impose the mandatory minimum of 17 years imprisonment in this unusual combination of circumstances.Outcome[51] Steven Findlay on the charge of murder, I sentence you to life imprisonment. I order you to serve a minimum period of imprisonment of 11 years. Please stand down.Solicitors:RPB Law, DunedinJudith Ablett-Kerr QC, DunedinMedlitcotts, Dunedin