Decision by Glazebrook, Ellen France and Harrison JJ in:

Churchward v R  Court of Appeal

[2011] NZCA 531; (2011) 25 CRNZ 446, 15 & 16 June and 19 October 2011

C J Tennet for Appellant,  R J Collins and D J McWilliam for Respondent

Key areas

Criminal Justice: Sentencing — Minimum period of imprisonment — Presumption of 17-year minimum period of imprisonment for certain murders — Allowance for youth — Significance of adolescent brain development — Scientific evidence — Relevance of defendants’ mental health

Offences: Murder — Premeditated home invasion for purpose of robbery — Sentencing — Minimum period of imprisonment — Presumption of 17-year minimum period of imprisonment — Allowance for youth — Significance of adolescent brain development — Scientific evidence — Relevance of defendants’ mental health

 Note: This case is reported mainly on the significance of adolescent brain development for sentencing

The Appeals

Appeals by C

1. against her conviction for murder 
2.  against her sentence of life imprisonment with a minimum period of imprisonment (“MPI”) of 17 years.

She was aged 17 at the time of her offending, and suffered from mental health issues of depression and symptoms of Post Traumatic Stress Disorder.

Background

The victim, a 78 year old pensioner, was beaten in his bed with a wooden walking staff and a wooden rod. This caused massive head injuries and blood loss which resulted in respiratory failure leading to eventual death. The Crown’s case was that C and her cousin killed the victim.

Case for the Appeals

C argued re her conviction that:

1. the trial Judge erred by not directing the jury on the relevance of youth to the question of intent
2. there was a breach of s 39 Evidence Act 2006 because C’s veracity was to be questioned in cross-examination on behalf of her co-defendant cousin, and proper notice was not given 
3.  the Judge should have commented on the cousin’s failure to give evidence 
4. the Judge should have highlighted, throughout the summing up, that a co-accused's statements are not admissible against the other accused
5.  the Judge failed to highlight the submissions for C’s cousin that were not based on evidence or not put to C 
6.  the Judge failed to direct the jury that the Crown's submission that C had pursued the victim as he moved down in his bed was merely a theory

 C argued re her sentence that:

1. life imprisonment was inappropriate  
2. the presumption under s 104 Sentencing Act 2002 of a 17 year MPI should have been displaced, as the threshold of manifest injustice was met because her age and mental health issues were mitigating factors

The Decision  - Held

Summary: Appeal against conviction dismissed; appeal against sentence allowed in part

(1) All grounds of appeal against conviction were rejected. (paras 8 to 28)

(2) This was a brutal murder committed in the course of a premeditated home invasion for the purpose of robbery, and life imprisonment was appropriate. (para 65)

 Age of a defendant

(3) The age of a defendant can be relevant to sentencing and a mitigating factor for a MPI in the following ways:

(a) because of age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and may be more impulsive than adults

(b) the effect of imprisonment on young people, including the fact that long sentences may be crushing on them

(c) young people have greater capacity for rehabilitation, particularly given that the character of a juvenile is not as well formed as that of an adult

(d) offending by a young person is frequently a phase which passes fairly rapidly, and thus a well-balanced reaction is required in order to avoid alienating the young person from society 

(e) criminal convictions at that stage of a person’s life may have a disproportionate impact on the ability of a young person to gain meaningful employment and play a worthwhile role in society. (paras 76 to 78)

 Scientific evidence on adolescent brain development

(4) With regard to factor (a), there is a growing body of scientific evidence on adolescent brain development which demonstrates that young people are neurologically significantly different to adults.

NSW Department of Education and Training research

The New South Wales Department of Education and Training considered that adolescence is a period of development, particularly in the ability to produce, establishing an individual identity, and developing logical and rational thought processes.

It summarised the research as follows:

(a) the ability to plan, consider, control impulses and make wise judgements is the last part of the brain to develop

(b) adolescents are built to take risks, and that is simply part of their biology

(c) most adolescents know right from wrong, but the environment in which their risk-taking and other behaviours occur can lead to inappropriate behaviour 

(d) adolescents are more prone to react with gut instincts and impulsive and aggressive behaviour.

These neurological factors can lead to a reduction in the culpability of young people as compared to adults. This does not mean that young persons should not take responsibility for their actions - it is merely that their actions may be partly explicable (but not necessarily excusable) by their state of neurological development. (paras 79 to 81)

Youth compromised by offence  

(5) Where offending is grave, the scope to take account of youth may be greatly circumscribed. This is because the very factors that may lead young people to offend may cause concerns about future public safety. There is also the need for denunciation and deterrence, both specific to the offender and general. (para 84)

Psychological reports not available to sentencing Judge 

(6) If C had been an adult offender the sentencing Judge had correctly identified that a minimum period of imprisonment of 19 years would have been available, and thus gave some discount for youth in fixing the MPI at 17 years.

But the Judge did not have available the amount of material, including psychological reports, that the Court had on appeal.

Mental health issues

C suffered from some mental health issues. The Court quoted its recent summary in E(CA689/10) v R [2011] NZCA 13; (2012) 25 CRNZ 411 at [70] of the relevance of impaired mental functioning to sentencing. C’s mental health issues, her upbringing, her immaturity, and her attachment to her co-offender might at least partly explain what was otherwise an inexplicable crime. Given the seriousness of offending those factors could not excuse her actions, but nevertheless meant that her culpability was lower than if she had been a mature adult. (paras  93, 100 and 104)

E(CA689/10) v R [2011] NZCA 13; (2012) 25 CRNZ 411 followed

Justice of MPI 

(7) Taking the psychological reports and all relevant factors into account, particularly C’s prospects for rehabilitation and the crushing nature of a long sentence without possibility of parole and the effect on rehabilitation this might have, the appropriate MPI, apart from s 104 SA, would have been significantly less than 17 years.  But the Court was still required to consider whether the imposition of a MPI of 17 years’ imprisonment was manifestly unjust. It concluded that the appropriate MPI was 13 years. (paras 105 to 107)

Subsequent cases:

Applied by R v Olver [2012] NZHC 706 R v Lisiate HC Auckland CRI-2009-044-2878 , 16 December 2011

Considered by Skipper v Police [2012] NZHC 783 Rarere v Police [2012] NZHC 779 R v Aoapaau [2012] NZHC 700  Pascoe v Police [2012] NZHC 187 Overton v R [2011] NZCA 648 Te Wini v R [2011] NZCA 617

Referred to by R v Feauai [2012] NZHC 171 R v M (CA689/11) [2011] NZCA 673; [2012] NZAR 137 (CA)  R v Yu HC Auckland CRI-2010-004-9725, 15 December 2011 R v Margetson HC Dunedin CRI-2011-012-3495, 14 December 2011 R v Taoho HC Rotorua CRI-2009-263-163, 12 December 2011  Nesbitt v Police HC Christchurch CRI-2010-409-90, 30 November 2011

Update

Churchward v R: 5 April 2012, Supreme Court of New Zealand [2012] NZSC 25 

 Unsuccessful application by C for leave to appeal against Court of Appeal (‘CA’) dismissal of C's appeal against conviction for murder; substance of proposed appeal was that Judge should have given jury direction on significance of C's age when assessing murderous intent as C was only 17 years old at the time; expert evidence presented to CA on significance of age and particularly how adolescents assess risk. 

Held:

Agreed with CA that evidence along those lines would not have been of material assistance to C at trial; proposed appeal insufficiently arguable to justify granting leave on grounds that;

(a) no basis for thinking jury did not understand what had to be established to reach guilty verdict for murder,

(b) given severity of attack, level of violence and age of victim it was probable jury would infer C acted with intent to kill or recklessness and

(c) C's youth was before jury albeit not heavily emphasised by C's counsel possibly because she was older than her co-defendant,

(d) not much trial Judge could have said in absence of expert evidence and no reason to think C prejudiced by absence of judicial comment and

(e) C not prejudiced by failure to call evidence at trial along the lines of that later provided to CA.

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