SPlAovl2b

ZEALAND_
THE HIGH COURT OF NEW
HAMILTON RElGISTRY_

T.021094

TA

BLED

− 6 MAY 2099

V

1AW AND ORDER

REx ARTHUR LAW

Dat___.~e:

29 August 2002

Counsel:

for Crown
R GDouch andD E Cherry
Prisoner
D LBates and M Bates for

Sentence:

18 months imprisonment
detention
Leave granted to apply for home

SENTENCE OF RANDERSON J

Solicitors:
19173, Hamilton for Crown
Almao Kellaway, P O Box
11083, Papamoa for Accused
D LBates, P O Box

!
|

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−1−999 −your−− wife was −fōrfnāll>− diagnosed −a−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.
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
[4]

that your wife had always said "Don't let that ever happen to me". When talking to

2

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"".
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.
[5]

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.
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
[7]

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.
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
[9]

wife had Alzheimer's. You described your actions then as a mercy killing. You also

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.
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
[13]

previous convictions apart from a minor driving matter some years ago which has no
bearing on your sentencing.
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
[14]

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

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.

Evidence of Dr 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

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.
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
[19]

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.

Defence 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−I−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.
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
[21]

any way necessary. You are fortunate to have such support from family and others
in the community.
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.
[22]

Equally however, Mr Bates submits that your guilty plea acknowledges your sense
of social responsibility and your acceptance that the law makes your conduct

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 māy 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 Albury−Thomson 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

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
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.
position of trust.

[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.
Mr Bates submitted that a full range of sentencing options was available and
reminded the Court that s 5 of the Criminal Justice Act 1985 no longer applied.
[30]

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.

[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.

Crown 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: Farquhar v Police (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.
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
[34]

9

that in giving the Court 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

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

− −−−

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 from which 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 of sentencing options become available if the
presumption is overcome.
Mr Douch concluded by acknowledging that the prisoner's culpability was to
be assessed having regard to the aggravating and mitigating factors identified by
[43]

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

Assessment

[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.
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
[47]

which arose and that you acted out of compassion rather than malice. You have

13

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.
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
[48]

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 ha
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

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.
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
[52]

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 and 9
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.
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
[54]

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

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 Albury−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 Albury−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 any
right will be seen as devalued accordingly. [p 85]
[57]

Third, the Court in Albury−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.
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
[58]

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:
supervision for one year was imposed.

pp 70 and 72.

A sentence of

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
[59]

16

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 v−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
Plainly, you do not represent any risk to the
community but that is not the only matter to be considered. While there are

the safety of the community.

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

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.
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,
[64]

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.
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
[65]

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

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
[66]

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

19