Sentencing for homicide
Specific issues in sentencing for murder
Presumptive life sentence for murder: section 102
11.52Section 102 of the Sentencing Act provides a presumption in favour of life imprisonment for those convicted of murder. This was introduced in 2002, when the mandatory life sentence for murder was abolished in New Zealand. The presumption is rebuttable but only if a life sentence would be “manifestly unjust”.
11.53As might be expected, given the inherent gravity of a murder conviction, the “manifestly unjust” threshold for departing from a life sentence with a 10-year minimum period of imprisonment is very high. Since the Sentencing Act was enacted, there have only been six cases in which a finite sentence has been substituted for a sentence of life imprisonment. This small group includes two cases in our review, R v Wihongi and R v Rihia. The other cases that have met the “manifestly unjust” threshold are:
- A “mercy killing” where a husband killed his wife who had advanced Alzheimer’s disease.
- A case with a 13-year-old offender.
- A case in which the offender was convicted as a party to the murder but was not directly responsible for the death.
- A case in which the offender was suffering from schizophrenia and experiencing paranoid delusions. The defence of insanity was rejected by the jury, but the sentencing Judge noted that the attack was entirely out of character and was motivated only by the mental illness.
11.54Other than in exceptional cases where the presumption of life imprisonment is displaced, the Sentencing Act also includes a hierarchy of minimum periods of imprisonment if a sentence of life imprisonment is imposed. Section 103 prescribes a 10-year minimum period of imprisonment, and section 104 requires a court to impose a minimum period of 17 years for murder committed with one of several aggravating features, such as a “high level of brutality”. As with section 102, the 17-year minimum period can be departed from in qualifying cases only if the judge considers that a minimum term of that length would be “manifestly unjust”.
11.55The range of circumstances in which the courts have been willing to depart from the presumptive 17-year minimum period is broader than that in which the section 102 presumption in favour of life imprisonment has been displaced, notwithstanding that the language of “manifestly unjust” is used in both sections. The more severe sentence of a 17-year minimum period and the range of qualifying features that lead to that sentence mean that more offenders are likely to fall within the class for whom the punishment is clearly unduly severe, meeting the “manifestly unjust” threshold.
11.56Thus, while murder sentencing in New Zealand (outside of the three strikes regime) is now discretionary, it is still tightly constrained, and the threshold for departing from the presumption of a life sentence will be met only in truly exceptional cases. In these circumstances, it is especially striking that, in two cases, a history of abuse has satisfied the test. Wihongi comes close to identifying a class of defendants who will ordinarily receive reduced sentences. As a Court of Appeal case, Wihongi is binding on lower courts and has been followed on this point in Rihia. Wihongi includes commentary on relevant principles and parliamentary debates that indicate that the legislature envisaged that victims of “severe and prolonged abuse” would be a class of offender for whom the presumption may be set aside.
11.57The section 102 presumption has, however, not always been displaced in cases of this kind. It was not addressed in R v Neale or R v Reti, the other two murder convictions in our case review. These cases preceded Wihongi and Rihia, but given they comprise half of the murder convictions in our case review, it is necessary to consider whether they affect the precedential value of the later cases in terms of section 102. It appears that Neale and Reti are distinguishable on the basis they are not so readily amenable to a primary victim/predominant aggressor analysis. In Reti, for example, the relationship involved violence, but there was also evidence the defendant was generally the aggressor. Thus, it appears tenable to conclude that, in light of Wihongi, there is at least an emerging trend towards displacement of the section 102 presumption in cases where a primary victim of family violence kills their abuser. The Family Violence Death Review Committee (FVDRC) made a similar observation in its submission, albeit with the rider that, in its view, the starting point for the finite sentences imposed in these cases is still “very high”.
Finite sentence lengthTop
11.58The Court of Appeal in Wihongi, relying in large part on fresh evidence about Ms Wihongi’s risk of reoffending, increased the sentence from eight to 12 years. In Rihia, the Judge adopted a 12-year starting point, based on similarities to Wihongi. After a two-year guilty plea discount, Ms Rihia was sentenced to a 10-year finite term of imprisonment.
11.59As we have already said, some commentators have expressed concern about the length of the sentences imposed in these cases and argued that, given the history of abuse the defendants suffered before the homicides, even finite sentences of 12 and 10 years are too high.
11.60This concern is premised partially on a comparison with sentences imposed in manslaughter cases. As noted in Chapter 9, our review of the cases suggests the murder convictions tended to follow evidence of more serious offending than in the manslaughter cases, with stronger evidential bases for intention and less clearly self-defensive elements. We are therefore sceptical of comparing sentences in manslaughter and murder cases, although we acknowledge there may not always be a significant culpability gap between murder and manslaughter. In Paton, for example, the Judge considered the offending was “only a very short way from murder” but sentenced Ms Paton to five years and three months’ imprisonment.
11.61Bearing in mind that murder involves the intentional taking of life other than in self-defence, a reasonably lengthy finite sentence is likely to be appropriate even in highly unusual mitigating circumstances. Further, the sentences in Wihongi and Rihia are among the lowest ever imposed for murder in New Zealand. The only case we have identified in which a person has received a sentence of less than 10 years’ imprisonment for murder is R v Law, the euthanasia case.
11.62Each case also turns on its own facts. In Wihongi, the Court of Appeal had considerable fresh evidence on reoffending risk, and the sentence increase was based on that evidence and the Court’s concern the finite term should address the sentencing purposes of denunciation and deterrence. This is apparent from the Court of Appeal’s judgment:
In our view, in the particular circumstances of this case, the sentencing principle of community protection is better met by a longer finite sentence, providing a longer period of imprisonment (during which treatment can be provided to Ms Wihongi with a view to reducing future risk). It would also provide a longer period during which some supervision with the possibility of recall is available. A longer finite term also assuages the concern that a sentence of eight years’ imprisonment does not adequately meet the sentencing purposes of denunciation of a crime involving the taking of a life and deterrence.
11.63When it declined Ms Wihongi leave to appeal further the Supreme Court emphasised the case’s particularity, noting that the issues the Court of Appeal addressed and on which its decision was based were “very fact-specific”. Thus, it seems plausible that a shorter finite term could be imposed in a case with a minimal risk of reoffending (such as Wickham, if that case had resulted in a murder verdict), although Wihongi was a Solicitor-General’s appeal and so the range of the appropriate finite term may have extended beyond the 12 years actually imposed.
11.64It is also helpful to consider penalties for other crimes against the person. For example, the maximum sentences for “wounding with intent” or “aggravated wounding or injury” are 14 years, and for “injuring with intent”, the maximum penalty is 10 years. As for manslaughter, in Whiu, the conviction resulted in a sentence of seven and a half years, even with a discount for psychological disturbance from family violence. This suggests that a finite term of 10 or 12 years, or even slightly more, is broadly in the range that could be expected for murder. To the extent there remains a difference between sentences for murder and sentences for manslaughter (with Paton perhaps the clearest example in our review), the seriousness of a murder conviction should not be discounted. Further, where the presumption of life imprisonment (which is not engaged for manslaughter) is displaced, that will, in itself, be a material recognition of reduced culpability even before the length of the finite term arises.
11.65Finally, returning to Wihongi, it is relevant the Court of Appeal declined to impose a minimum period of imprisonment. The 12-year finite term equates to a non-parole period of four years under the Parole Act 2002. The Court of Appeal considered whether a longer minimum term was required and decided not to impose one. Ms Wihongi has now appeared before the Parole Board three times, first in June 2014, and has not yet been released. We have had the benefit of reviewing the notes of the Parole Board for each of the hearings. The Parole Board has reached the view that further reintegration planning is required before Ms Wihongi is released. At none of the hearings has her legal representative sought release.
11.66For these reasons, we are satisfied that a close review of Wihongi and Rihia does not demonstrate there is a problem with the sentences in those cases. What it does demonstrate is that, in sentencing, judges are required to balance a range of matters. Mitigating factors must, in particular, be weighed against community protection and deterrence and denunciation of serious crime.
The impact of the repeal of provocationTop
11.67In Chapter 9, we considered whether the repeal of provocation has adversely affected the position of victims of family violence who commit homicide in terms of trial outcomes. We concluded there is at present insufficient evidence to say that it has.
11.68When it comes to sentencing, we have already observed that it is problematic to compare pre-repeal cases (like R v Suluape and R v King) with post-repeal cases (like R v Rihia). We do not repeat that discussion here but record the following statement of the Court of Appeal in R v Hamidzadeh, made by reference to the section of the Law Commission’s 2007 Report that we referred to in Chapter 10:
We do not discern any Parliamentary intention to diminish the high threshold necessary to establish manifest injustice under s 102. Indeed, the Law Commission specifically rejected the adoption of any lower standard in its report which led to the abolition of the provocation defence. We see no reason to depart from the general approach adopted in Rapira, recently endorsed in Wihongi, that manifest injustice under s 102 is likely to be established only in exceptional circumstances. It necessarily follows from the abolition of the defence that a conviction for murder is no longer to be treated as manslaughter where provocation is established. Sentencing for murder must therefore be approached on the footing that the killing was intentional or, where applicable, that the offender intended to inflict injury known to be likely to cause death but was reckless as to whether death ensued or not.