IN THE HIGH COURT OF NEW ZEALAND
NAPIER REGISTRY
CRI 2013-020-1634
[2013] NZHC 2813
THE QUEEN
v
RAYMOND SHAYNE CHRISTISON
Hearing:
24 October 2013
Counsel:
S B Manning and F E Cleary for Crown
A J S Snell for Defendant
Judgment:
24 October 2013
(ORAL) JUDGMENT OF HEATH J
Solicitors:
Crown Solicitor, Napier
L Lafferty, Napier
Counsel:
A J S Snell, Hastings
R v CHRISTISON [2013] NZHC 2813 [24 October 2013]
Introduction
[1]
Mr Christison is for sentence today, having pleaded guilty to murdering his
former partner, Gail Constant Bower. The murder took place at Havelock North, on
7 June 2013.
[2]
The sentence for murder is almost inevitably one of life imprisonment.
Having imposed that sentence, the sentencing Court is required to determine the
minimum period of imprisonment that the offender must serve before he or she may
apply, for the first time, for parole. Two discrete set of rules apply. Where there are
particularly serious aggravating factors, the Court is required, presumptively, to
impose a minimum period of 17 years. In the absence of such factors, the minimum
period is 10 years. Those periods can be adjusted upwards where the circumstances
so dictate.1
[3]
In this case, there are three aggravating factors on which the Crown seeks to
rely to bring this crime within the category of cases that requires a presumptive
mandatory minimum term of 17 years. They involve these questions:
(a)
Did the murder involve “calculated or lengthy planning”?2
(b)
Did the murder involve “the unlawful entry into, or unlawful presence
in, a dwelling place”?3
(c)
Was the murder “committed with a high level of brutality, cruelty,
depravity or callousness”?4
[4]
Mr Christison disputes that those aggravating factors apply in this case. I
have heard evidence this morning on matters primarily directed to the questions of
planning and the level of culpability involved in what occurred. That has been done
to resolve disputed questions of fact that are relevant for sentencing purposes.
1
2
3
4
Sentencing Act 2002, ss 102–104. In the case of the 17 years period, it may also be adjusted
downwards if to impose a period of that length would be “manifestly unjust”.
Ibid, s 104(1)(b).
Ibid, s 104(1)(c).
Ibid, s 104(1)(e).
[5]
The Crown bears the burden of proving beyond reasonable doubt that the
aggravating factors exist.5 I have indicated to counsel that if any of the factors were
proved I would regard the crime as falling within the presumptive minimum term of
17 years.6
Background
[6]
Mr Christison and Ms Bower had been in a relationship for some 23 years.
They have two sons, aged 19 and 22 years respectively, at the time of their mother’s
death.
[7]
For some time, there had been friction within the household. In December
2004, Mr Christison had assaulted Ms Bower. After pleading guilty to a crime of
male assaults female, he 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, in February 2005. Mr
Christison and Ms Bower continued to live together.
[8]
As the years progressed, conflict appears to have increased. While there is no
real 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. The evidence is that Mr Christison is obsessive
about matters of detail, including the way in which personal possessions are laid out
in the family home. Controlling and obsessive behaviour of that type can often
reflect a self-centred approach to life. So, it appears to have been in this relationship.
[9]
By February 2013, Ms Bower had decided to leave the family home. After
she left, Matthew (the younger child) began to receive text messages from his father.
The first of these was sent at 10.14am on 4 February 2013. Mr Christison made it
clear that he wanted to re-establish the relationship, that he would do “whatever it
takes” to do so and that he was not going to allow “anyone else near Ms Bower”. He
concluded the short message by saying:
5
6
Ibid, s 24(2)(c).
Ibid, s 24(2)(a).
I am going to lose the plot soon son. I want your mother and you guys back
home.
[10]
One minute later, another text message was sent to Matthew. It read:
I am not giving up never will. I would rather die than let someone have her.
You might think I am being stupid but I love her so much. If I can’t have her
no one else will be either. I mean that son. Son I love you, you should know
that by now. I am sick of being by myself. If I end up going to jail because
of this then so be it. But I can tell you now son there is no way I am letting
anyone else be with your mother.
[11]
That day, Ms Bower went to the Havelock North police station to seek
assistance. She had understandable fears for her safety and was worried about how
Mr Christison would react to her leaving the relationship. After that visit, further
incidents occurred which required the intervention of the Police Family Violence
team, from Hastings.
[12]
On 2 March 2013, Ms Bower moved to another location, 36 Campbell Street,
Havelock North. Matthew and one of his male friends boarded with her at that
address. Initially their place of residence was kept secret from Mr Christison, but he
soon found out about it. It became clear to Ms Bower, as a result of further actions
on the part of Mr Christison, that she needed to seek further assistance.
Mr
Christison was issued with a trespass notice. That was breached on one occasion
when Ms Bower found him at her window one night.
[13]
On 26 March 2013, Ms Bower obtained a temporary protection order from
the Family Court at Hastings, against Mr Christison. He was served personally with
the order on 27 March 2013. The order was made final by the Family Court on 22
May 2013, after a defended hearing at which both Ms Bower and Mr Christison were
represented.7
[14]
In determining that a final protection order should be made, the Family Court
Judge said that she did not consider that Mr Christison had “been able to move on
from the relationship with [Ms Bower], although the separation was some four
months” beforehand.8 The Judge, while accepting that there had been “a significant
7
8
GCB v RSC [2013] NZFC 4170.
Ibid, at para [19].
period since the physical violence” was satisfied that “the psychological violence
had been much more recent and has taken place since separation”. She found that it
was Mr Christison’s “ongoing lack of understanding or acknowledgement that his
behaviour” had made Ms Bower “fearful” that indicated to her that Ms Bower
required continuing protection”. She added that there was no evidence from Mr
Christison of any counselling that he had sought to deal with what the Judge clearly
saw as having been “an absolutely devastating breakup of a relationship”.9
[15]
Whatever the position may have been before the final order was made, Mr
Christison became consumed by its effect and a sense of injustice about what had
occurred. From that time on, I consider that the tragic events of 7 June 2013 were
always at risk of happening.
[16]
That background is largely uncontroversial. It is now necessary to make
findings on what actually occurred on the night of the murder and then to consider
whether those facts bring the killing within the scope of the provisions that require a
prima facie minimum mandatory period of imprisonment of 17 years.
Findings of fact
[17]
At about 2pm on 7 June 2013, Mr Christison’s mother took her RAV4 motor
vehicle to Mr Christison’s home so that he could sell it. They talked. Mr Christison
said that he was having “angry thoughts”. He told his mother that he “just wanted to
kill the bitch” meaning Ms Bower.
[18]
After his mother left, Mr Christison began to prepare to go to work. He was
working a night shift at that time. I find that during the afternoon his consumption
with the situation in which he found himself (separation from a long standing
partner, being the subject of a protection order and concern about relationship
property issues) led him to act on his angry thoughts.
[19]
On Mr Christison’s own evidence, he acted in a calculated manner. He got a
hunting knife from his wardrobe; he obtained synthetic gloves from the shed; he
9
Ibid, at para [20].
found a beanie into which he cut holes to form a balaclava; he drove in his mother’s
vehicle, one that Ms Bower would not expect to have seen him drive.
[20]
Mr Christison parked some distance from Ms Bower’s address. He walked
towards it, putting his gloves and balaclava on and holding the unsheathed knife in
his right hand. On the objective evidence collected by the Police, all of this was
happening between 5.30pm and 7pm. I agree with Mr Manning, for the Crown, that
it is likely to have been around 7pm, when occupants of a neighbouring house heard
female screams coming from a nearby, but unidentifiable property.
[21]
At this time, on a winter’s night, it was dark. The property in which Ms
Bower was living faced onto Campbell Street. There was no gate from the driveway
onto the street. The driveway went up past the house. There were two gates
separating the driveway from the rear of the house, where an outdoor living area was
situated.
[22]
On Mr Christison’s evidence he went into the drive, wearing his balaclava
and gloves and carrying the knife. He went to Ms Bower’s car. He went down the
left hand side of it, as it pointed towards the outdoor living area.
From the
photographs produced in evidence, this is a narrow area and it would have required
Mr Christison to brush past a hedge. After putting a scratch or scratches onto the left
hand passenger door of the vehicle, Mr Christison says that he moved forward
around the front of the car and, standing somewhere in the vicinity of the right front
headlight looked into a window. This probably was the window into which he had
looked on the earlier occasion which found him in breach of the trespass notice.
[23]
At this stage it appears, on Mr Christison’s version of events, that Ms Bower
comes out of the property, sees him, moves towards him and hits him with
something. Initially, Mr Christison suggested that this was with a lump of firewood
taken from a wood pile within the outdoor living area. Mr Christison said after
being hit by Mr Bower, he “lost it”. He then stabbed and killed her. He says that he
laid next to her wishing that he too was dead. He heard a noise. At this stage he cut
Ms Bower’s throat in what appears from the photographs to be a very chilling
manner. Attempts were made at self harm. It appears that he then went inside the
dwelling and came back out. Mr Christison then left.
Analysis
[24]
I do not find Mr Christison’s explanation credible. There are a number of
problems with it:
(a)
First, why would a person take a hunting knife with them to another
person’s property to scratch a car? Mr Christison had the keys to the
RAV4 vehicle and could readily have undertaken that task with the
keys.
(b)
Second, why would he look into the window? Mr Christison was
thinking clearly enough when at his own home to disguise himself in
order to avoid being seen by a surveillance camera that he understood
was present. He did not want to be seen or recognised because he was
in fear of breach of the protection order. Why, if that were so, would
he risk Ms Bower seeing him, unless he wanted to see her and to do
her harm with the knife.
[25]
There was also a problem with that part of Mr Christison’s evidence that
suggested that Ms Bower had hit him with a piece of wood. His initial evidence was
that the blow was struck to the back of his head and then to the throat. First, that
would not have caused Mr Christison to be “half-winded”, as he had told a probation
officer. Secondly, it is inherently unlikely that the smaller Ms Bower who had
evidenced extreme fear of her former partner, would engage with him rather than
trying to escape into the house. Indeed, Mr Christison retreated from this version of
events in evidence, when it must have been plain to him how incredible the story
sounded.
[26]
The act of slitting the throat, when Mr Christison did not definitely know Ms
Bower was 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.
[27]
In my view, the Crown has proved beyond reasonable doubt that Mr
Christison did go to Ms Bower’s house to kill her. He did so in a depressed state and
with a muddled mind. That may be a form of explanation, but it does not excuse his
actions. Nor does it affect the presence of an actual intent to kill. To deliberately
take a knife either to scratch a car or to do harm to Ms Bower stretches credulity.
[28]
The point is put beyond doubt by the evidence of his son, Matthew, that all
scratches on the car were there before the incident; the forensic examination of the
pieces of wood in close proximity to the scene of the attack, which revealed no hair
or blood on any of them, and the statement made by Mr Christison to his mother on
the telephone after he had killed Ms Bower. He told her that he had “killed the
bitch”, a phrase that resonates with what he had said earlier in the day.10
[29]
Having said all of that, I do not believe that Mr Christison is lying to the
Court today. Experience in the Courts tells us that on many occasions a person can
convince himself or herself to be telling the truth, even though objectively it must be
false. This happens regularly, particularly in a case like this, where a person has
done something so horrendous that he cannot live with what has been done without
finding some other explanation for it.
The issues
(a)
“Calculated or lengthy planning”
[30]
I first deal with the issue of “calculated or lengthy planning”. If the murder
involves calculated or lengthy planning, it establishes one of the factors which
requires the Court to impose a presumptive minimum period of imprisonment of at
least 17 years.11 The exception is where the Court is satisfied that it would be
manifestly unjust to do so.
[31]
I have already held that the way in which Mr Christison went about preparing
for his visit to Ms Bower’s property (disguising himself and taking a lethal weapon)
means that the murder was undertaken in a calculated manner. What comprises
10
11
See para [17] above.
Sentencing Act 2002, s 104(1)(b).
“calculated” or “lengthy planning” for the purpose of this provision has been
considered by our Court of Appeal. “Calculated” goes to the detail of the planning,
while lengthy to the period of time involved.12 The fact that this occurred over a
relatively short period of time during the day tells against a finding of lengthy
planning, but does not affect my view that it was calculated in nature.
(b)
Unlawful presence at dwelling place
[32]
The second issue concerns whether the murder took place following unlawful
presence in a dwelling place.13 The time-honoured phrase equates a person’s home
to his or her castle. That phrase is designed to reflect the sanctuary that is expected
of a home. The most frequent situation in which unlawful presence in a dwelling
place will aggravate a murder is where there has been a home invasion. That does
not, however, exclude other possibilities.
[33]
While different views have been expressed as to whether living areas abutting
a dwelling house can be considered as coming within the description of a dwelling
place,14 like any legal question arising out of statutory interpretation, context is all
important. The issue must be resolved having regard to all relevant circumstances.15
[34]
In this case, context includes the following facts:
(a)
Ms Bower had determined to live apart from Mr Christison, but he
could not accept that decision.
(b)
Ms Bower had obtained from the Family Court, by the date of the
murder, a final protection order. Mr Christison had become consumed
with the consequences of that.
(c)
Ms Bower’s fears of Mr Christison were well-known to him and she
had taken many steps to safeguard herself; including, enlisting the
12
13
14
15
Pandey-Johnson v R [2012] NZCA 595 at para [46].
Sentencing Act 2002, s 104(1)(c).
Compare R v Pahau HC New Plymouth CRI-2008-043-43555, 16 August 2012 (Asher J) at para
[29] with R v Mohamed [2013] NZHC 1761 at para [21].
Pahau v R [2011] NZCA 147.
assistance of the Police, issuing a trespass notice and obtaining a
protection order.
(d)
Nevertheless, Mr Christison entered private premises on which he had
no right to be present with the intention of committing an illegal act.
The murder took place near a porch area in which outdoor furniture
was placed and which, on Matthew Christison’s evidence, was
frequently used for entertaining.
[35]
The word used in the section is “dwelling place”, not “dwelling house”. In
my view, that was a deliberate legislative decision to ensure the sanctuary expected
from a home was plainly seen to extend to living areas and gardens outside.
[36]
In my view, Mr Christison did make an unlawful entry onto the property at
which Ms Bower was living and was unlawfully present at her dwelling place when
the murder was committed. That is the second of two factors that has been proved.
(c)
Callousness
[37]
The third relates to whether there was a high level of brutality, cruelty,
depravity or callousness about the murder.16 In one sense there is no such thing as a
murder that is not brutal, cruel, depraved or callous. For present purposes, I must
focus on the “high level” of such conduct.17
[38]
In a previous case, I considered the meanings of “brutality” and “callousness”
by reference to dictionary meanings that are somewhat enlightening:18
The dictionary definitions of the term “brutality” refer to an unreasoning or
senseless behaviour by a human being. “Callousness” is defined as a
“hardened state of mind, a want of feeling and insensibility. The underlying
concept captured by the dictionary definition in relation to “callousness” is a
“numbness of the soul”.
16
17
18
Sentencing Act 2002, s 104(1)(e).
R v Slade [2005] 2 NZLR 526 (CA) at para [40].
R v Frost HC New Plymouth CRI-2007-043-471, 9 April 2008 at para [30]. Approved by the
Court of Appeal in R v Frost [2008] NZCA 406 at para [37]. See also, R v Mason [2012] NZHC
1849, at para [44].
[39]
This was callous. The way in which Mr Christison went about the deliberate
killing was to be abhorred. In 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.
Result
[40]
For those reasons, I find proved beyond reasonable doubt that the murder
involved calculated planning, that it involved the unlawful entry into a dwelling
place and was committed with a high level of callousness. I intend to sentence on
that basis.
______________________________
P R Heath J