R v Kinghorn

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeHammond J
Judgment Date12 May 2014
Neutral Citation[2014] NZCA 168
Docket NumberCA875/2013

[2014] NZCA 168

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

O'Regan P, Hammond and Stevens JJ

CA875/2013

Between
The Queen
Appellant
and
Matthew David James Kinghorn
Respondent
Counsel:

M Laracy for Appellant

J Hannam for Respondent

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.

Held: In order to draw an inference it was first necessary to identify the “primary facts” on which an inference could be grounded at all ( Caswell v Powell Duffryn Associated Collieries Ltd). The drawing of an inference was in itself an exercise in fact finding and could frequently be strongly contested. To deal with such a critical contested fact at a sentencing hearing, rather than a disputed facts hearing, was inappropriate. It raised a danger that the usual criminal law safeguards would not be met. And routinely a judge might have to form his or her own impression of a witness or witnesses. An inference turned on all the available evidence.

While not inhibiting the use of “partial” agreed statements of fact being advanced to sentencing judges, as a matter of process truly contested facts were for a hearing. Whether the inference contended for by the Crown was to be drawn was central to this case.

The Judge was not in error. The case turned on the factual material that was available for review by the Judge. The Judge had applied the correct legal test when declining to draw the inference.

The difficulty with the Crown's kidnapping argument was that it could not be established beyond reasonable doubt that K knew the victim was alive when he put her into his car. If he knew she was alive then in theory kidnapping was possible and there was room for a sinister sexual motive. If not, he was simply placing what he thought was her dead body into his car and he was moving her body out of panic rather than as the residue of an inchoate, failed abduction or sexual assault plan.

Further even if K knew the victim was alive, it was not clear this could amount to a murder in the course of the commission of a kidnapping; rather it would be a kidnapping in the course of a murder, which would not come within s104(1)(d).

Section 104(1)(e) required a “high level”. In this instance K ran the victim down and she died almost instantly. This did not meet the test in s104(1)(e).

Leave to appeal granted. Appeal dismissed.

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
...

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