R v Kinghorn

• Jurisdiction: New Zealand
• Judge: Hammond J
• Judgment Date: 12 May 2014
• Neutral Citation: [2014] NZCA 168
• Docket Number: CA875/2013
• Court: Court of Appeal
• Date: 12 May 2014

Between

The Queen

Appellant

and

Matthew David James Kinghorn

Respondent

[2014] NZCA 168

Court:

O'Regan P, Hammond and Stevens JJ

CA875/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Solicitor-General's appeal against sentence on the ground that either s104(1)(d) Sentencing Act 2002 (SA) (committed in the course of another serious offence), or s104(1)(e) SA (high level of brutality or callousness) was engaged and a minimum term of imprisonment(MPI) should be imposed — appellant had deliberately run down victim and then placed her in his car and had driven her to a field where he spent some time — no evidence victim was sexually assaulted but there was evidence of appellant having engaged in sexual activity in car — at sentencing hearing Crown asked Judge to draw an inference that the murder was committed in the course of another serious offence, namely a sexual assault of some kind but judge declined to do so on the evidence — whether it had been appropriate to ask at the sentencing hearing that the judge draw the inference of the commission of a sexual offence — whether the murder had occurred in the course of a kidnapping so that s104(1)(d) applied.

Counsel:

M Laracy for Appellant

J Hannam for Respondent

JUDGMENT OF THE COURT

A We grant leave to appeal against sentence under section 383(2) Crimes Act 1961.

B The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

1 Mr Kinghorn pleaded guilty to the murder of Mrs Anne McCullough. On 3 December 2013 he was sentenced by Rodney Hansen J in the High Court at New Plymouth to life imprisonment with a minimum term of imprisonment of 13 years. 1

2 The Solicitor-General seeks leave to appeal against that sentence on the ground that in the circumstances of this particular case, s 104(1)(d), or in the alternative s 104(1)(e), of the Sentencing Act 2002 was engaged, thereby necessitating as a matter of law a minimum term of imprisonment of 17 years, unless that would be manifestly unjust.

3 Counsel for the appellant, Ms Laracy, accepts it would be manifestly unjust to impose a minimum period of imprisonment of 17 years in this case, given the relevant mitigating factors, particularly the early guilty plea. Given that this is a Solicitor-General appeal, she argues the minimum non-parole period should have been 15 years.

4 Mr Hannam responsibly accepts that given a distinct issue of law is involved this is a proper case for leave. Leave to appeal is granted.

The undisputed facts

5 The sentencing in the High Court was to be preceded by a disputed facts hearing. However counsel for the Crown and the defence felt able to provide the sentencing Judge with an extensive 19 page “Summary of the Evidence” to avoid such a hearing. For reasons we will come to shortly, this process has proved problematic.

6 Mr Kinghorn spent the evening of 19 October 2012 drinking with friends and associates at various locations in New Plymouth. He drove a distinctive purple Holden Commodore car. He parted company with his associates around 8 am on Saturday 20 October 2012. He was subsequently seen driving in the direction of his house. Thereafter he was seen driving at various points in New Plymouth. Around noon, he was again seen in the vicinity of his home. He then went to an ATM machine and checked his account balance. At about 12.30 pm he went to Nauti Nik

Naks, an adult shop in New Plymouth. There he purchased a tube of lubricant, a bottle of “Fetish” leather cleaner (which can be used as a muscle relaxant or inhaled as a stimulant) and a packet of “Dr Feelgood” party pills containing four tablets, which are used for their stimulant effect

7 Thereafter Mr Kinghorn was seen driving out of New Plymouth, though in the interim he may have returned home. He passed the deceased Mrs McCullough, who was on foot, on Frankley Road. She was proceeding down the grass verge on the side of the road, in the direction of oncoming traffic.

8 At some point Mr Kinghorn turned his car around to travel back towards where Mrs McCullough was. As Mr Kinghorn approached Mrs McCullough he drove off the road and onto the grass verge at a speed between 27.4 and 38.6 kilometres per hour. He drove directly at Mrs McCullough without braking. He hit her with the front left side of the car. She was propelled across the bonnet of the car. Her head impacted with the windscreen, shattering it. She was flung off the bonnet onto the grass.

9 Mr Kinghorn started braking around the point of impact. His car came to a stop between 10.8 and 17 metres from the point of impact. He then got out of his car, picked Mrs McCullough up, and laid her on the back seat of his car.

10 Mrs McCullough's death resulted from high energy impact injuries to her head and brain, spine, chest wall, and limbs. She was knocked unconscious on impact and never recovered consciousness. It was not possible to precisely fix the time of death. Mrs McCullough could have died within three to five minutes of the impact, and at most up to an hour later. Rodney Hansen J concluded it was probable that survival was at the shorter end of that spectrum.

11 After the collision, Mr Kinghorn was seen driving slowly back up the road. He appeared agitated. Witnesses described him as “kind of jerky”, moving around in the car and looking in the back seat. He drove on for some distance, on occasion in an erratic manner. Finally he drove into a paddock and parked in a corner close to bush where he could not be seen from the road. It is estimated he was at that site for between six and fifteen minutes. Sometime after 1.30 pm he drove out of the paddock to the car park at a scenic attraction known as the Meeting of the Waters. There he abandoned his car. Mrs McCullough was still lying in the back seat. The police were called to it in mid-afternoon.

12 Mr Kinghorn had gone to a nearby house and asked the occupant to call the police and his mother. He was described as being in an agitated and distressed state. He made a number of comments including an awareness of what he had done. For instance he said to the first police officer who arrived: “I've killed her, I've killed her”. He also made admissions to a doctor who examined him, including that he had heard voices in his head saying: “They said [expletive] hit her so I [expletive] hit her.”

13 Mrs McCullough's body was still in the rear of the Holden car when the police located it. Her clothing appeared to be entirely in place. Her cellphone was located in the back pocket of her running shorts. An autopsy found no evidence of sexual assault.

The disputed facts

14 The Crown argued at the sentencing that s 104(1)(d) of the Sentencing Act was engaged because the murder of Mrs McCullough was committed in the course of another serious offence, namely a sexual assault of some kind.

15 There have been previous cases in which a victim has been deliberately struck down by a vehicle in the course of a sexual assault. For instance, in R v Alder: 2

[3] The deceased, […], was jogging along a country road near the Hawkes Bay Golf Club on a Sunday morning. She had been with her partner but he had run on and she was returning alone to where they were staying. Mr Alder deliberately ran her down with his car in order to assault her sexually. She suffered a serious dislocation to her hip and other injuries as a result of being struck by the car and thrown against the windscreen and then to the ground. Mr Alder forced her, in her injured state, into the back seat of his car. She was then, and throughout the events which followed, in very considerable pain but conscious. Mr Alder sought no help for her; to the

contrary he drove her down the long drive of a nearby property where there was no-one at home. Over the next two hours or so, he raped and sodomised her and also forced his penis into her mouth. He then killed her by means of several heavy blows to the head with a seven kilogram drainage pipe. The injuries he thus inflicted would have killed [the victim] immediately. But nevertheless Mr Alder went to his car, got a knife, and proceeded to inflict at least 35 stab wounds to various parts of her body.

16 In that case there was clear and direct evidence establishing killing in the course of a sexual crime. The defendant received a minimum non-parole period of 17 years, though the present provision was not yet in force.

17 In this instance there was no such direct linkage. Rather, the Crown sought at the sentencing hearing to have the trial Judge draw an inference of an integral connection between the deliberate running down in the vehicle and prospective sexual offending.

18 This method of proceeding in this case was distinctly problematic. Undoubtedly the trier of facts in a criminal trial is entitled to draw inferences from facts that have been proved to that trier in evidence. In this case the Crown argued there was an inference that Mrs McCullough met her death “in the course of” intended sexual offending. Rodney Hansen J declined to take that view.

Process

19 Before we review the Judge's approach, we comment on the process relating to drawing inferences, and the law relating to a killing in the course of another crime.

20 The methodology involved in drawing an inference has never been better put than by Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd: 3

Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or...