The Queen v Rex Arthur Law

8/16/2019 The Queen v Rex Arthur Law

1/19

SPlAovl2b

THE

HIGH

COURT

OF

NEW

ZEALAND_

HAMILTON

RElGISTRY_

T.021094

V

TA

BLED

6

MAY

2 99

AW AND ORDER

REx

ARTHUR

LAW

Dat___.~e:

Counsel:

Sentence:

29

August

2002

R

GDouch

andD E

Cherry

for Crown

D

LBates

and

M Bates

for

Prisoner

18

months

imprisonment

Leave

granted

to

apply

for home

detention

SENTENCE OF R NDERSON J

Solicitors:

Almao

Kellaway,

P

O Box

19173,

Hamilton

for Crown

D LBates,

P O

Box

11083, Papamoa

for

Accused


2/19

|

Introduction

[1] Mr Law,

you appear

for

sentence

today having

pleaded guilty on 6 August

2002

to

a

charge of rnurdering

your

wife

on

6 March

this

year.

You

are now

77

years

of

age

and

your

wife

at

the

date of her death

was

73.

The

facts

[2] The facts I

am

about

to

relate

are

derived from

the police

summary

of facts

with the addition of some other undisputed material from depositions evidence,

including

statements

you

made

to

the police. You and

your

wife

had been married

for

over

50

years.

You had enjoyed

a

happy

relationship.

There

was one

child of the

marriage,

your son

who

now

lives in Auckland. You

were

a

farmer until about 1964

when

you

took

up

work in various other capacities including assisting

your

wife

to

run a

small shop in Thames. You both retired in 1990.

[3] About eight

years

ago,

you

began

to

notice signs

of

deterioration in

your

wife's

−

health.

−−−−

In

−

inid

− −

999

−

your

−−

wife

was

−fō

rfn

ā

ll>

−

diagnosed

− −

s

−s−

uffe

−

rin5

−−

froin

dementia, the likely

cause

of which

was

Alzheimer's disease.

Your wife's condition

continued

to

deteriorate

over

the period

up

to

the date of her death.

She

was

suffering

from serious

memory

difficulties

and

confusion from

at

least

the

middle

of

1999 onwards, but probably

earlier

than that. She

was

having difficulty in sleeping

for

which

she

was

prescribed sleeping pills

by her general practitioner. Her

personality changed

and

she became abusive and aggressive

towards

you.

She

would wander from the house and

you

would have

to

bring her home.

She also

became careless about her personal

care

and hygiene,

and required

constant

care

from

you,

especially

over

the

two

years

prior

to

her death.

[4] Some

years

earlier, when

you

and

your

wife

were

running

the shop in

Thames,

you

had each noticed

customers

with Alzheimer's. You told Dr Simpson

that

your

wife had always said Don't let that

ever

happen

to

me . When talking

to

2


3/19

the

police immediately after the

event,

you

said

We made

a

pact

years ago

that if

any

of

us

did

get

Alzheimer's,

we

would do each other

in .

[5] In

a

lengthy police

statement

on

the day

after

the

event,

you

explained that

you

understood

your

wife to be saying when the subject

was

raised

some

years

earlier, that if either of

you

had Alzheimer's, the other would take that

person's

life.

You accepted

that the method by which this might

occur

had

not

been discussed in

detail

apart

from reference

to

taking

a

large

amount

of pills. After

your

wife

was

diagnosed, she would regularly

say

she wished

to

die but

you

did

not

respond

because

you

acknowledge she

would not know what

you were

talking about.

[6] About two weeks prior to your wife's death, you made a serious attempt to

bring

both

your

lives

to

an

end. After giving

your

wife

some

sleeping pills,

you

shut

the door of the bedroom

with both

of

you

inside,

and turned

on a gas

bottle. That

attempt

was

unsuccessful

and

you

decided that

some

other method would be needed.

[7] You

then began

to

plan how

your purpose

might be achieved and

to

summon

up

the

courage

to

do

so.

On the night in question,

you

first

gave your

wife

a

quantity

of sleeping pills.

While

she

was

lying

on

the bed,

you

hit her

on

the head with

a

single

blow from

a

wooden mallet and

you

then placed

a

pillow

over

her face. Death

ensued

from asphyxiation, although the pathologist's

report

also indicated

your

wife

had

serious

heart

disease which

may

have been

a

contributing factor. It is evident

from

police photographs and

your own

evidence that the blow

to

the head

was

made

with

sufficient

force to

cause a

laceration with moderate loss of blood.

It

is also

clear that there

was some

degree of struggling although only for

a

few minutes

before death

resulted.

[8] After

you were sure your

wife

was

dead,

you

made

a

determined

attempt

again

to

take

your own

life by slashing

your

wrists

a

number of times. You lost

a

substantial quantity

of blood but in the end, the

attempt

was

unsuccessful.

[9] The

following morning

you

telephoned the police

to

tell them what had

happened. You told

a

police

officer

you

knew what

you were

doing and that

your

wife had Alzheimer's. You described

your

actions then as

a mercy

killing. You also


4/19

told the police officer about the

agreement

which

you

and

your

wife had, and told

him

you

had

nothing

to

live for.

[10] I

am

satisfied

you

did intend

to

end

your own

life

as

well that night

because

you

also left

a

note

for

your son,

apologising

to

him and telling him

that

your

wife

was

getting

worse every

day and

you

could

not

take it

any

more.

[11] The fact that

your

wife had Alzheimer's has been

confirmed by medical

evidence. The diagnosis

was

that her

dementia

was severe.

Although

there is

no

independent

evidence

to support

the

agreement

you say was

made with

your

wife, I

am

satisfied that the

account

you gave

to

the

police in

that

respect

was

truthful.

Indeed, from the outset, you have been completely frank with the police, admitting

that

your

actions

were

carefully planned

and that

you

knew

exactly

what

you were

doing.

Pre

sentence

report

[12] Your commendable frankness is also demonstrated by

the

pre

−

sentence

report. The probati_on

−

officer records

−

that_you_

are

−

adamant

−

you

−

should _b_e__punished

and should

go

to

prison.

You

told the probation officer

you were

afraid

that others

with motives of gain would do the

same

thing should

you escape

without penalty.

[13]

The probation officer

canvasses

the sentencing options

available

to

you

but

does not

make

any

specific recommendation. The

report notes that

you

have had

no

previous convictions

apart

from

a

minor driving

matter

some years

ago

which has

no

bearing on your sentencing.

[14] It is accepted that there is little

or no

risk

of

your

re

−

offending and the

report

notes

that supervision

was

not

considered because there

was no

on

−

going need for it.

If

a

non

−

custodial

sentence

were

considered, the probation

officer

suggests

light

duties by

way

of community work, noting that

you

suffer from diabetes

as

well

as

blood

pressure

and

some

heart problems.

In

the

event

of

a

custodial sentence,

the

probation officer

expresses

the

view

that

you

would be

a

suitable

candidate for home

detention.

4


5/19

Psychiatric

report

[15]

I

have also been assisted

by

a

report

from Dr S Simpson,

an

experienced

senior psychiatrist.

He conducted

an

extensive interview with

you

which

provides

confirmation of the facts and

your

motivation

at

the time of these

events.

[16] You told Dr Simpson that although

your

wife

was

still physically

strong

and

well, in

your

mind she

was

dying mentally.

You

were

deeply

distressed about

your

wife's

on

−

going

mental decline and the indignity from which

she

was

suffering. You

saw

it

as your

duty

to

care

for

your

wife and

to

run

the house.

I

am

satisfied

that

you

did

so

to

the

best

of

your

abilities.

You told Dr Simpson,

as

well

as

the probation

officer, that

you were a

private

person

and that is confirmed by other evidence.

I

also

accept

that both

you

and

your

wife

were

proud of

your

independence and that

explains why

you

did

not

seek assistance from

others and why

you

did

not

wish

to

place

your

wife in

a

nursing home

or

hospital.

You

told

Dr

Simpson

that

over

time,

you

had lost all hope. He concluded that

your

actions

appeared

to

be those of

a

loving and devoted husband who

was

profoundly distressed

at

his wife's condition.

[17_]_ Dr Simpson did not have any concerns about your mental state at the time of

his

report

in March this

year

and

you

have since been living with

your son

in

Auckland following the sale of

your

home

at

Thames. There

are no

longer

any

concerns

that

you

might

harm yourself.

vidence of r N K Fisher

[18] Your counsel has placed before the Court, evidence from

a

consultant

psychiatrist Dr NK

Fisher who specialises in the

management

of patients with

dementia including Alzheimer's disease. Dr Fisher described Alzheimer's

as a

common

and devastating illness. It is

a

degenerative neurological disease which

gradually destroys the

nervous

tissue in the brain

over

many

years.

It is said

to

affect

5 of all people

over

the

age

of 65 and 20 of people

over

the

age

of 80. Of those

affected by dementia,

Alzheimer's

is the

cause

of between 60 and 70 of

cases.

The progress of the disease is variable but the average course of the disease is around


6/19

11

years

from the point

at

which it is first recognised.

While

medication

can

improve

memory

and function,

there

are no

known

treatments for the disease itself

which will ultimately be fatal. Often, however, death is

as a

result

of other

coincidental physical illness.

[19] Dr Fisher

confirmed

the

symptoms

which

you

described

noticing

in

your

wife

and the

very

substantial

burden

on

those

who

care

for

people suffering from the

disease.

Dr

Fisher has stated that, often, the

most

emotionally difficult

factor for

someone

such

as

yourself is the gradual loss of the

person you

married

who

may

turn

into

someone

with

a

different personality

causing

premature

bereavement for the

carer,

while

not

releasing the

carer

from

the

responsibility

of

looking

after that

person.

Again, those observations also confirm the feelings

you

described to

Dr

Simpson.

efence submissions

[20]

Mr Bates

on your

behalf has prepared

a very

thorough, comprehensive, and

helpful submission and has provided

to

the Court

must

useful background material.

This has

−

includedsome

−

of

−

the

−

material

− −

have

−

already

−

canvassed

−

but

−

also

−

statements

from others who have spoken

on your

behalf,

as

well

as a

petition signed

by

a

numbef of residents

from

your

community in Thames, speaking of

you

and

your

wife in glowing

terms.

I

accept

immediately that

you are a person

of

unblemished

character

who

has

led

a

blameless life.

[21] Your

son

John and his

partner

have

also

filed affidavits confirming they

are

willing to continue to look after you in their home in Auckland and to support you in

any

way necessary.

You

are

fortunate

to

have such

support

from family and others

in the

community.

[22] Mr Bates has referred

to

your

unwavering belief that

you

acted morally and

correctly

in ending

your

wife's suffering

and in attempting

to

take

your

own

life.

Equally however, Mr Bates

submits that

your

guilty plea acknowledges

your sense

of

social responsibility and

your

acceptance

that the law

makes

your

conduct


7/19

criminal.

Mr Bates has emphasised the importance of

a

just balance between the

expectations

of society and

your own

personal circumstances.

[23] His principal submission

is that

a

non

−

custodial

sentence

should

be imposed,

notwithstanding the view which

you

expressed

to

the probation officer.

[24] Both counsel have referred

me

to

Parliamentary

materials relevant

to

the

Sentencing Act 2002

in

relation

to

murder charges.

I

have

reviewed

commentary

on

the Sentencing and Parole Reform Bill

as

reported from

the Justice and Electoral

Committee,

as

well

as

statements

made by the Minister

of Justice

on

the first and

second readings of the Bill. It is abundantly clear that

the

purpose

of the

new

legislation is to provide more flexible sentencing in murder

cases.

There is

no

longer

a

mandatory

sentence

of life imprisonment for

murder but the Bill retains what is

described in the Parliamentary materials,

as a

strong presumption in favour of life

imprisonment for that crime. The

most

serious

cases

may

require

even

longer

sentences, but

there

may

be

a

small number of

cases

where

a

sentence

less than life

imprisonment

may

be warranted.

Examples given included

mercy

killings, failed

suicide

pacts,

and situations in which the accused

ā

y be described

as

a

battered

defendant or someone who has suffered from prolonged and severe abuse.

[25] At the first reading of the Bill, the Honourable Minister

gave

by

way

of

an

example, the lbury homson

case

which has

some

parallels with the

present.

In

the

same

speech, the Minister spoke of

cases

in the

past

where

the

jury

has compensated

for the lack of

flexibility in sentencing

by finding

a

verdict of manslaughter' rather

than murder. He stated that the

new

legislation

would enable

a

jury

to

make

an

honest verdict but with the imposition of

a sentence

which

was

appropriate in all

the

circumstances.

[26] Mr Bates submitted this

was

a case

where it would be manifestly unjust

to

impose the mandatory

term

of

life imprisonment,

having regard

to

the

purposes

and

principles of the Sentencing Act. He submitted that the sentencing

context most

closely analogous in

this

case were

sentences

imposed

for the crime of manslaughter

where

a

full

range

of sentencing options

was

available depending

on

the

circumstances of the

case.

He submitted that

a

defence of provocation

may

have

7


8/19

been available

to

you

and that the provisions of

s

180 of the Crimes Act relating

to

suicide

pacts

may

also have been applicable. Conviction

under

that section would

have rendered

you

guilty of

manslaughter

rather

than

murder. I

am

satisfied

however

that

this is

not

a case

of

a

suicide

pact

as

defined in

the

Crimes

Act.

[27]

Whether

or

not

provocation

may

have been available

is

strictly speaking

beside the point and its application would have been problematic in this

case

in

any

event,

given the deliberate

way

in

which

you

acted. By

your

guilty plea

to

murder,

you

have

not

sought

to

rely

on

provocation

to

reduce

the charge

to

one

of

manslaughter. However,

I accept

Mr Bates' submission in the general

sense

that

the

total

circumstances facing

you,

the

stresses

you were

under,

and

your

motivation for

your

actions

are

all important

matters

for consideration.

[28]

In

dealing with the aggravating factors, Mr Bates

accepts

actual violence

was

involved although he submitted that

your

actions did

not

involve

cruelty. I

cannot

accept

that

submission totally because there would have been

some

degree of

unnecessary

pain in the method

you

chose

to

end

your

wife's life, although

not at

the

higher end of suffering inflicted in other

cases.

Nor, he submitted, did

you

abuse

a

position of trust. Mr Bates urged me to view your actions as honouring an

undertaking

to

your

wife

to

act

humanely in bringing her life

to

an

end. He accepted

there

was an

element of

pre

−

meditation involved.

[29] Dealing

with

the

mitigating factors, Mr Bates emphasised the emotional

exhaustion and

stress

from which

you

were

suffering,

your

previous good character,

your age

and

health, and the fact that

you

pleaded guilty

on

arraignment

and

accepted responsibility for

your

actions by contacting

the police.

[30] Mr Bates submitted

that

a

full

range


was

available and

reminded the Court that

s

5 of the

Criminal

Justice Act 1985

no

longer

applied.

There

was,

therefore,

no

statutory

presumption in favour of

imprisonment

if the

Court

were

to

decide it would be

manifestly unjust

to

impose life imprisonment.

Mr Bates

submitted that

a

number of

options

were

not

appropriate in

your case.

These

were

supervision,

community

work,

and discharge with

or

without conviction.


9/19

[31] Mr Bates submitted

that the Court should make

an

order under

ss

11 and 110

of the Sentencing Act that

you

should

come

up

for

sentence

if

called

upon.

rown submissions

[32]

Mr Douch has

also

presented extensive submissions in which

he

accepts

on

behalf of the

Crown

that

you are

to

be sentenced under the Sentencing

Act 2002 but

that

s

104 of that Act does

not

apply.

That follows from

s

154 of the Sentencing

Act.

Mr Douch also confirms that the Crown does

not

apply for

a

minimum period

of

imprisonment of

more

than

ten

years

pursuant to

s

103 of the Act. Accordingly,

Mr Douch accepts that the first issue is whether, in the circumstances of this case,

the presumption

in

favour of life imprisonment in

s

102

can

be

overcome.

He

submitted

on

the basis of Parliamentary materials and the Law Commission's

Report

number 73, that there

was

a

very

strong

presumption in favour of life imprisonment

for murder and he drew

my

attention

to

the

use

of the word must in the opening

words of

s

102

in relation

to

the presumptive

sentence

of life imprisonment.

Mr

Douch also submitted that

factual

situations

resulting in the presumption being

rebutted would be

rare.

He also submitted that the expression

manifestly unjust

means

that I

must

be satisfied that it would be

clearly

or

unmistakably unjust before

the presumption would be

overcome:

arquhar

v

olice (High

Court, Dunedin,

AP.57/95, 8 September 1995, Tipping J).

[33] Mr Douch noted that if the presumption

were overcome,

then there

was a

distinct

difference

in

the

parole

provisions.

For life imprisonment,

a person

sentenced

to

life imprisonment would

not

become eligible

for parole for

ten

years

while

a

finite

sentence

longer than

two

years

would

ordinarily

mean

that the offender

became eligible for parole after serving one

−

third of the

sentence.

Although there is

power

for the Court

to

impose

a

minimum period of imprisonment under

s

86 of the

Act, Mr Douch

submitted that this section would only

rarely be

capable of

being

invoked in

a case

where the Court decided that life imprisonment

was

manifestly

unjust under

s

102.

[34] I accept that different parole regimes apply depending

on

the conclusion

reached

on

the

presumption under

s

102, but Parliament

must

have been

aware

of

9


10/19

that in giving

the ourt the

power

to

−decide

upon

a

lesser

sentence

if the

presumption

were overcome

It

may

well be

wrong

in

principle

to

increase

an

otherwise appropriate

sentence because

of

the provisions dealing with

eligibility

for

parole which Parliament has seen fit to make

[35]

It

was

also

submitted for the Crown that

s

16

was

not

relevant

to

the

considerations under

s

102. That is plain

from

s

16(3)

which provides that the

section is subject

to

any

other provision in

any

other

enactment

that provides

a

presumption in favour of

or

against imposing

a

sentence

of imprisonment in

relation

to

a

particular offence

or

requires

a

Court

to

impose

a

sentence

of imprisonment in

relation

to

a

particular

offence. In this

case, s

102 clearly

falls within

s

16(3)(a) and

so s

16 is

not to

be taken into

account

when

considering

under

s

102

whether

a

sentence

of life imprisonment

would

be

manifestly

unjust.

However, if the

Court

concludes that the presumption is

overcome,

then I

see

no

incompatibility

in

considering

s

16 in determining the appropriate

sentence and Mr Douch accepted

that. If the presumption is

overcome, s

102 does

not

give

any

guidance

as

to

the

appropriate

sentence.

I conclude that the Court is then

free

to

fix

an

appropriate

sentence

having

regard

to

all other relevant

provisions

of the Act. Both counsel

−

agree

−

that is

so

.....

[36] Mr Douch referred

me

to

various

cases

in which

the Courts

have

referred

to

the importance of protecting the sanctity of human life and

I

will refer

to

those

cases

later. He also submitted, in

my

view correctly, that this

was

not

a case

of

a

suicide

pact

under

s

180 of the

Crimes

Act. Counsel submitted that the expression mercy

killing used in the Parliamentary materials and by

yourself when

speaking

to

the

police was not a defined term in the statute or otherwise and there were great

difficulties in deciding in what

circumstances

a

matter might properly be described

as a mercy

killing. I

accept

Mr Douch's submission that the

correct statutory

approach is

to

determine whether the presumption under

s

102

should be

overcome

rather than attempting

to

place the offending into

one

pigeon

hole

or

another.

[37] Counsel then addressed

a

number of

matters

which

were

submitted

to

be

relevant

to

the

issue under

s

102. He

accepted that

your

wife

was

in

need of

care

and

that she

was

suffering

symptoms

of

Alzheimer's disease.

However, he observed that

10


11/19

there is

no

evidence

that

your

wife

was

suffering

from physical

pain

as

a

result of the

disease,

nor was

there

any

evidence

that her death

was

imminent.

He also

submitted

that it

was

difficult

to

assess

the

extent to

which

your

wife's quality

of life

was

affected. While these submissions

are correct as far as they go, I am satisfied on the

basis of the evidence presented that

your

wife

was

suffering

to

a

substantial

extent

by

the loss of the

faculties

I have already described

and that her condition

was

terminal.

It is impossible

to

determine how

long she might otherwise have

survived. But

given the

onset

of

severe

Alzheimer's disease

and her serious heart disease,

she

may

not

have survived for

a

great

deal longer.

I

note

your own

assessment

that

your

wife

nevertheless remained physically

strong.

But I place

most

weight

upon

the medical

evidence available

to

me.

[38] Mr Douch submitted that there

was no

material before the Court

to suggest

that

at

the

time

of her death, the deceased had the ability

to

understand

the

course

of

conduct proposed and

to

agree

to

it. You acknowledge

that yourself but there is

evidence which I

accept

that she had in the

past,

before

she became ill, discussed

with

you

her preference for death rather than dementia through

Alzheimer's disease

or

otherwise.

I

accept

Mr Douch's point nevertheless that

your

wife's inability

in the

period

−

prior

−

to

−−

her

−

death

−

to

−−

understand

−

the

−

course

−

oFconduct

−

proposed

and

−

to

−

agree

− −−

to

it in

any

meaningful

way

is

a

factor

to

be considered. I also

accept

Mr Douch's

submission that there

was a

degree of violence

and pre

−

meditation in the

means

used

to

kill

your

wife.

[39] While

Mr

Douch appeared

to accept

in

his submissions that there

was

material suggesting that

you

felt

you were

doing

the

right thing in

the circumstances

as you believed them to be, he submitted there was a degree of self interest as far as

you were

concerned arising

from

your

difficulties in coping with

your

wife and

unhappiness about

your own

position.

I

find that submission

hard

to accept

given

the loyal

and continuing efforts

you were

making

to

look after

your

wife

as

best

you

could. I

am

satisfied that the

true

construction of

events

was

that

you

had reached

the end of

your

tether and did

not

wish

your own

life

or

that

of

your

wife

to

continue.

[40] I take a similar view with regard to the criticism made by the Crown of your

failure

to

seek assistance in caring for the deceased. Of

course,

assessed objectively,

11


12/19

there

were avenues

in

the community available

to

you

to

look after

your

wife. I

accept however that

your

failure

to

do

so was

understandable

given

your

strong

feelings of independence

and pride.

To

describe

your

failure in this

respect

as

involving

a degree of arrogance as the Crown suggested in submissions, is to ignore

the

very

real

stresses

you

must

have been under. I do

not

accept

that submission

for

a

moment.

The fact

that

you

made

two

serious

attempts to

take

your

own

life is the

most

compelling evidence of the

stress

and despair

you

were

experiencing

at

that

time.

[41] While accepting

the tragedy of the disease fromwhich

your

wife

suffered and

the associated indignity,

the Crown submitted that there

was

no

clear and

compelling

case

for

a

departure from the presumption under

s

102 and that,

to

do

so, was

wholly

inappropriate, given the principle

of

protecting

the

sanctity

of human life.

[42] Counsel referred

to

a

number of

cases

under the previous legislation

of

sentences

bearing

some

similarity

to

the

present

but noted

that

none

of them

addressed

a

conviction

for murder. It

was

submitted that

even

in

cases

of

manslaughter,

a

custodial

sentence

would almost always be the appropriate

outcome

and

−

that_this_should

−

beseen__as

−

the almost_inevitable response

−

in

−

respect_of murder.

The Crown submitted that euthanasia

was

not

authorised by

s

102

or any

other

provision and that

a

stern

response was necessary.

It

was

submitted that if the

presumption

were overcome,

it would be

a rare case

where

a

finite

sentence

of less

than

ten

years

imprisonment

would be imposed

given

the eligibility for parole after

one

−

third of that

sentence.

This

was

certainly

not

such

a case

the Crown submitted.

With

respect,

I

cannot

discern

any

statutory

intention

to

impose

any

particular length

of sentence in cases where the statutory presumption is overcome. Indeed,

Mr Douch

accepted that

the

full

range


become available if the

presumption is

overcome.

[43] Mr Douch concluded by

acknowledging that the prisoner's culpability

was

to

be assessed having regard

to

the aggravating and mitigating factors identified by

counsel. Mr Douch

acknowledged

the

difficulty in determining

the

weight

to

be

placed on the relevant

mitigating factors in

a case

of murder such

as

this.

12


13/19

ss ssm nt

[44]

Mr Law,

your

sentencing

presents

me

with considerable

difficulty

not

just

because it is the first time the Courts have been required to consider under the

Sentencing Act imposing

a

sentence of less than

a

term

of life imprisonment

for

murder, but also because of the compelling

personal circumstances which

led

you

to

kill

your

wife. I

accept at

once

that

you

acted with the best of motives in

the

situation

as

you saw

it and that the loss of

your

wife is

a

greater

penalty for

you

than

anything

I

can

impose.

However, I

am

required

to

approach

your

sentencing within

the

statutory

framework laid down by

the Sentencing Act.

[45] In

terms

of

s

102 of the

Act,

aperson

convicted of murder

must

be

sentenced

to

imprisonment for life unless, given

the circumstances of the offence and the

offender,

a

sentence

of imprisonment

for life would be manifestly unjust. Whether

a

term

of life imprisonment would be manifestly

unjust is the first question I

must

decide. In doing

so,

I

must

consider the circumstances

of the offence and

your own

circumstances. Those

requirements

are

conjunctive in

contrast

to

the similar

words

used in

s

5 of the

Criminal

Justice Act 1985. When sentencing

or

otherwise dealing

with

an

offeiider,

I

am

also reguire~dTo

have regard

to

the

purposes

and principlus of

sentencing

set out

in

ss

7

and

8

of

the Act. I

accept

the Crown's submission that I

must

be satisfied that it is clearly

or

obviously unjust

to sentence

you

to

life

imprisonment and that the discretion will likely

be exercised in only

a

small number

of

very

unusual

cases.

[46] The

purposes

of sentencing relevant

to

your case

include denunciation;

holding the offender accountable for harm done

to

the victim and the community;

promoting

in

the

offender

a sense

of responsibility for that harm; deterrence of the

offender

or

other

persons

from committing

the

same or

a

similar offence; the

protection of the community; and the offender's rehabilitation.

[47] Given the

circumstances of this

case, some

of the words used

in this section

of the Act

seem

somewhat harsh. I

accept

that from

your

point of view,

you

genuinely believed you were carrying out your wife's wishes in the circumstances

which

arose

and that

you

acted

out

of compassion

rather than

malice.

You

have

13


14/19

accepted

a sense

of

responsibility by

your

guilty plea

and

by

your concern

that others

might

carry

out

a

similar

act,

but for gain

or

other ulterior

rnotive.

[48] To speak of

denouncing

your

conduct is also

to put the matter a little highly

given the background which led

to

this offending

but

it is

most

certainly

not

conduct

to

be encouraged

or

condoned. Denunciation of this crime

is, however,

a

relevant

purpose as

community

values

are

at

issue. I

accept

that

there

is

no

need for

deterrence from

your

point

of view

or

for the protection of the community.

That is

because there is

no

risk

of

violence from

you

in

the future.

As

far

as your

rehabilitation is concerned, the assistance

you

require is in

overcoming the

trauma

of

these awful events. There remains for consi.deration, however,

the

statutory

purpose

of deterring

others

from

similar offending and that is something

to

which

I

must

return.

[49] In

terms

of

s

8 of

the Act, I

am

obliged

to

take into

account

the gravity

of the

offending

including

the degree of culpability involved. Your counsel

has

responsibly acknowledged

that

the deliberate taking of

a

human life is

a grave

and

serious

matter

but I

accept

his submission that the circumstances

with which

you

were_confronted_indicate_a_degree_oFculpability_towards

_the

lower

end

oFthe_scale.

It

must

h

undergo

a

change of personality,

to turn

against

you,

and

to lose her

memory

and

ability

to

care

for herself.

The

method

you

adopted

to

effect

your purpose

is

a

telling

indication of the

extent

of

your

desperation and the

stress

which

you were

under

as

your

wife's caregiver.

{50] I also take into account under s 8 that I must impose the least restrictive

outcome

that is appropriate in the circumstances. I

must

also take into

account

any

particular circumstances

applying

to

you

which

mean

that

an

otherwise appropriate

sentence

would be

disproportionately

severe.

I also have regard of

course

to

your

personal and family background and all the surrounding circumstances.

[51] Approaching the

matter

in this light, I have

no

doubt that the circumstances

of this offence and

your own

personal circumstances

are

such that

a

sentence

of

imprisonment

for

life would be manifestly unjust. I take into

account

particularly

the

14


15/19

matters

which

I

have already

canvassed,

your age

and

state

of health, and

my

conclusion that

yours

is the

very

sort

of situation which Parliament had in mind in

referring

to

a

small

number

of

cases

where

sentences

less than life imprisonment

were

appropriate. A

more

flexible approach is clearly intended by Parliament

to

recognise

the

fact

that the circumstances

of murder

cases can

and do

vary

markedly.

[52]

Having determined that

a

sentence

less than

life

imprisonment is available, I

accept

Mr Bates' submission that the full

range

of sentencing options under

the Act

becomes

available. It is then

a

matter

of considering the appropriate

sentence

in

accordance with the Act. In approaching that question, I have regard

to

ss

7, 8 and9

of the Act,

as

well

as s

16 which applies certain constraints against the imposition of

a

sentence

of

imprisonment.

[53] There is

no

need

to

re visit

my

remarks concerning

ss

7 and 8 of the Act but

in

terms

of

s

9, I

identify

the following

aggravating

factors. These

are

the

use

of

a

weapon,

the

vulnerability of

your

wife having

regard

to

her

age

and

health;

the

pre

meditation

involved in

the planning of her

death;

and the degree of

determination and violence involved in achieving it. On the

other

hand,

there

are

many

mitigating

factors~amongst

whieh

are

your

age

andatate

ofhealth;

the_

circumstances

surrounding the offence;

your

plea of guilty;

your

acceptance

of

responsibility;

your

evident

remorse;

and

your

previous

good character. Those

are

all powerful factors in

your

favour.

[54] In

terms

of

s

16, when

considering

the

imposition

of

a

sentence

of

imprisonment, I

am

obliged

to

have regard

to

the

desirability

of

keeping offenders in

the community as far as that is practicable and consonant with the safety of the

community. As

well, in

terms

of

s

16(2)

I must not

impose

a

sentence

of

imprisonment unless satisfied that the sentence is being imposed for

identified

purposes

under

s

7 and that

those

purposes

cannot

be achieved by

a

sentence

other

than

imprisonment and that

no

other

sentence

would be consistent with the

principles

in

s

8.

[55] Cases

decided under the

Criminal Justice

Act

in relation

to

manslaughter

sentences

give

some

guidance

to

the

view taken

by

the Court in

cases

similar

to

this

15


16/19

under the previous legislation. In

R

v

Albury Thomson

(1998) 16 CRNZ

79, the

Court of Appeal reduced

a

sentence

of four

years

imprisonment

to

one

of 18 months

in

a case

where the appellant had

been

found guilty

of the manslaughter

of her

autistic 17 year old daughter. The jury had found the appellant not guilty of murder

but

guilty

of manslaughter by

reason

of provocation. That

was

considered

to

be

an

important factor in the

case: p

83.

[56] The lbury

Thomson

case

is of importance for

several

reasons

relevant

to

the

present.

First, the Court emphasised the importance

to

the community

of protecting

the sanctity of human life. That has been stressed in

a

number of other

cases

including R

v

Ruscoe (1992) 8 CRNZ 68 and R

v

Stead (1991)

7

CRNZ

291, both

cases

decided

at

Court of Appeal level. Second,

although

there

was no

risk of the

appellant

re offending, the

Court

in

lbury

Thomson emphasised the importance of

general deterrence in this

way:

Lest it be diluted

or

overlooked the Courts

should

be

astute to

uphold

the

rights

of the weak, the vulnerable and the handicapped. When

they

are

breached, the

sentence

the Court

imposes

will

at

least in

part

be

seen

to

reflect the value which

the Court,

acting

as

the

voice

of the

community,

places

on

the right in question.

If

compared

with

previous

attitudes

or_trends, _the

Court

is

percei

ved__to__undervalue

the

right (at

an

right will be

seen as

devalued accordingly. [p 85]

[57] Third, the Court in lbury

Thomson confirmed earlier authorities which held

that

in New Zealand there is

no

established sentencing

pattern

for aiding suicide,

mercy

killings, and similar

cases: pp

85 86.

[58] R v Ruscoe was a case involving aiding and abetting the commission of

suicide which carries

a

maximum penalty of 14

years

imprisonment. The Court

found that in

many,

if

not most,

such

cases a

custodial

sentence

would be

required

but in

very

exceptional

cases

the promptings of humanity

may

be permitted

to

prevail and

a

non

custodial

sentence

applied:

pp

70 and 72. A

sentence

of

supervision for

one year was

imposed.

[59] In R

v

Stead the appellant

was

found guilty of manslaughter having stabbed

his mother

to

death. The Court

found that the circumstances

were more

akin

to

a

16


17/19

mercy

killing

than

the aiding of suicide and upheld

a

sentence

of three

and

a

half

years

imprisonment,

emphasising the sanctity of

human

life.

[60] I

have

also

had regard

to the

decision of Paterson

J

in

R

Karnon (High

Court,

Auckland. S.14/99,

29

April 1999) where

a

sentence

of

two

years

supervision

was

imposed after

a

guilty plea

to

killing

pursuant to

a

suicide

pact.

There

are some

features

of

the

case

similar

to

the

present

but I

note

that this is

not

a

suicide

pact

case

and that in Karnon the Crown accepted there

were

special circumstances

which

would entitle the Court

to

impose

a

non custodial

sentence.

I

have also considered

the

sentence

of Potter J in R

v

Simpson (High Court, Auckland, T.010609,

12

October 2001) where

a

sentence

of three

years

imprisonment

was

imposed

upon

a

son

who had killed

his

mother who

was

ill and in the last

stages

of her life. In that

case,

the Judge

accepted that the killing

was

properly described

as a mercy

killing

but

nevertheless found that general deterrence

must

be

a

relevant factor in the

sentence.

[61] Each

case

must

be considered

on

its

own

facts and I

must

approach

your case

by applying the

provisions of

the

Sentencing

Act.

Decisions under the previous

...

legislation

afford

some

guidance

but

must

beapproached

with

care

given

the

substantial changes in the

new

legislation.

I

also remind myself that

you

have

pleaded guilty

to

murder and

not

some

lesser charge. I

am

also

mindful of

Mr

Bates'

submission that

s

5

of the Criminal Justice Act is

no

longer in force.

[62] I have

already referred

to

those

aspects

of

ss

7, 8 and 9

which

I

consider

to

be

relevant to

the

present

case.

In

terms

of

s

16, I

have regard

to

the desirability of

keeping offenders in the community as far as that is practicable and consonant for

the safety of

the community. Plainly,

you

do

not

represent

any

risk

to

the

community but that is

not

the only matter to

be considered. While there

are

substantial factors

which

argue

for

a

compassionate

approach, those important

considerations

must

be tempered

by the high value

which

the Courts

and

the

community rightly attach

to

the sanctity of human

life.

The

taking of

a

human life,

even

for the highest and best

motives, is

not

permitted under

our

law and,

for good

reason, murder is

ordinarily regarded

as

the

most

serious crime

in

our statute

books.

According

to

the

evidence, there

are many persons

in

our

community suffering from

17


18/19

Alzheimer's disease and other forms

of

dementia. The

Court would be sending the

wrong message

to

the

community if it

were

prepared

to allow the deliberate killing

of

someone

suffering from such

a

disease

or

other affliction

to

go

unpenalised,

even

in the tragic circumstances of

a case

like this.

[63] Bearing these considerations in mind, it is,

with

respect,

unrealistic for the

Court

to

consider convicting

you

and

ordering that

you

come up

for

sentence

if

called

upon.

I

also

accept

your

counsel's submission that alternative

sentences

of

supervision

or

community work

are

not

appropriate in

your case.

There is

no

need

for supervision and community work does

not

commend itself. It might,

as

the

probation officer observed, assist

you as a

means

of

expiating the crime but that is

not

a

valid

reason

for

imposing

such

a

sentence.

Nor

would

it

reflect

in

any

adequate

way

the need

for general

deterrence

in relation

to

this

sort

of crime.

[64] It

gives

me no

pleasure

to

conclude that

a

sentence

of imprisonment

must

be

imposed but the Crown's submission

as

to

the appropriate length of

sentence

is,

again

with

respect,

equally unrealistic and ignores the compelling factors in

your

favour which in

my

view dictate that

a

term

of

imprisonrnent should

be for

no

longer

than is commensurate with thepurpo_ses_and~principles_ of

the_Act, _and _the

circumstances of

your case.

The Crown's submission overlooks the clear intention

of the

legislature

to

allow the Courts

to

impose

a

lesser

sentence

in

cases

such

as

this.

A

sentence

of imprisonment would

recognise

the

purposes

of denunciation,

accountability, responsibility, and general deterrence

in

s

7 of the Act and would also

appropriately reflect the principles

in

s

8. I

am

satisfied

that

those

purposes

cannot

be achieved by

a

sentence

other than imprisonment and that

no

other

sentence

would

be consistent with the application of the principles in s 8.

[65] I have concluded that

the

proper

sentence

is

one

of 18 months imprisonment.

You will be convicted and

sentenced accordingly. Leave will be granted for

you

to

apply

for

home

detention if

you

wish

to

do

so.

It will be

a

matter

for the Parole

Board

to

consider whether

yours

is

a

suitable

case

for home

detention

if

you

choose

to

apply.

18


19/19

[66]

Finally, in

terms

of

s

93

of the Act, I

am

obliged

to

impose

the

standard

conditions described in

s

14(1)

of

the Parole Act 2002. Those

terms

will

apply for

a

period

no

longer than

the

sentence

expiry date

as

specified in sub part

3 of Part 1 of

the

Parole

Act.

A

P

Randerson

J

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