Chapter 9
Observations from the cases

Sentencing outcomes

9.52Unlike jury verdicts, sentencing is conducted in public, and decisions are almost always transcribed. It is therefore relatively straightforward to review and compare reasons for decisions, but we are still restricted to the public record, and we have not seen or heard the primary evidence (although sentencing notes would usually record that evidence).

9.53There is variation among sentences, particularly between the murder and manslaughter cases we have reviewed. Beyond the sentences themselves, two features of the courts’ approach to the sentencing process warrant mention at the outset:

9.54We discuss these features in detail in Chapter 11.

Manslaughter sentences

9.55Manslaughter captures a wide range of conduct, and the range of penalties the courts are willing to entertain is correspondingly wide. Sentences in the manslaughter cases we have reviewed (of which there were 15) ranged from a suspended term of imprisonment (R v Erstich) and 12 months’ home detention (R v Wickham and R v Tagatauli) to five years and six months’ imprisonment (R v Brown). We have not identified a problem with sentences for manslaughter in this area.771

Murder sentencesTop

Displacing the presumption of life imprisonment

9.56Sentencing for murder is relatively complex. Section 102 of the Sentencing Act 2002 prescribes a presumption in favour of life imprisonment that is rebuttable only if, “given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust”. Where a life sentence is imposed, sections 103 and 104 prescribe mandatory minimum terms of imprisonment. The appropriate minimum term will depend on the circumstances of the offending.772
9.57The “manifestly unjust” test is strict. Since it was enacted in 2002, the presumption of life imprisonment has been displaced in only six cases, as far as we have ascertained.773 The presumption was not discussed in the two earlier murder cases in our review, R v Neale and R v Reti, in both of which the offenders were sentenced to life imprisonment with minimum periods of imprisonment of 10 years.774 The presumption was, however, reviewed and found to be rebutted in R v Wihongi and R v Rihia. The Court of Appeal in Wihongi considered section 102 and the circumstances of Ms Wihongi’s case and said:775

Overall, we see this as a case of a battered defendant who has reacted in an extreme way to her abuser in circumstances where both the history of abuse and the offender’s cognitive deficits have played a significant role in that extreme reaction arising. We see this as a case falling within the class of cases that Parliament contemplated would justify the displacement of the presumption [of life imprisonment].

9.58In Rihia, the Judge discussed Wihongi and concluded the two cases were sufficiently similar that they fell into the same category for the purposes of the “manifestly unjust” test.776 There was no Crown appeal against the sentence in that case.

The length of the finite terms

9.59The Courts in Wihongi and Rihia imposed finite terms of 12 and 10 years respectively. In Wihongi, after considering fresh evidence as to Ms Wihongi’s risk of future offending and the need to take account of the sentencing purposes of denunciation and deterrence, the Court of Appeal substituted the 12-year term for the eight-year term originally imposed by the High Court. In Rihia, the Judge relied on Wihongi in setting the finite term and assessing the starting point.777
9.60Some commentators and the FVDRC (in its Fourth Annual Report and its submission on the Issues Paper) have suggested that, notwithstanding displacement of the presumption of life imprisonment, the finite sentences imposed in Wihongi and Rihia may be too high.778 To some extent, this depends on a comparison of murder and manslaughter cases, which assumes juries’ decisions whether to return manslaughter or murder verdicts are somewhat arbitrary. The cases do not suggest this is valid. It is also plausible that the murder cases involved more serious offending and/or stronger evidence of murderous intent.
9.61It is also not self-evident that finite terms of 10 and 12 years are “too” high. Attitudes towards punishment vary. Some members of the community will think that, despite mitigating circumstances, the sentences in Wihongi and Rihia do not adequately reflect the seriousness of the offending. Those sentences are, moreover, among the lowest ever imposed for murder in New Zealand,779 and the Supreme Court declined Ms Wihongi leave to appeal against the Court of Appeal’s decision.780 We explore these issues in Chapter 11.

9.62Whatever view is taken of individual sentences, it must be borne in mind that sentencing decisions are made by judges who have heard the evidence, considered relevant reports and other material (including victim impact statements) and heard legal submissions. Without being fully appraised of the facts, it is difficult for us or others not involved in the cases to say with confidence whether a given sentence properly reflects the Sentencing Act and relevant case law.

771Although Julia Tolmie has recently suggested that subsisting misconceptions about family violence, in conjunction with difficulties in accommodating the nature and effects of family violence within existing sentencing doctrine and structure, may mean sentences imposed on victims of family violence convicted of manslaughter are disproportionately long when compared to sentences imposed on predominant aggressors convicted of manslaughter: Tolmie, above n 729, at 680.
772As to which, see Chapter 11.
773According to Statistics New Zealand records, 371 life sentences have been imposed since 2001. Finite sentences for murder are therefore highly exceptional – representing less than two per cent of the total.
774At sentencing in R v Neale, above n 715, the High Court Judge said, at [1], “Ms Neale … As you know, the maximum, and indeed the mandatory, sentence on a charge of murder is one of life imprisonment”, notwithstanding that Ms Neale’s case post-dated enactment of the Sentencing Act 2002. There appears to have been no suggestion that the s 102 presumption might be displaced in Ms Neale’s case, however.
775Wihongi (CA), above n 762, at [94].
776R v Rihia, above n 767, at [25]–[28].
777Ms Rihia was sentenced on the basis of a 12-year starting point (following Wihongi) with a two-year discount to reflect her guilty plea.
778Tolmie, above n 729, at 667; Family Violence Death Review Committee, above n 707, at 121; and Family Violence Death Review Committee submission at 36.
779The only case we have identified with a lower sentence for murder is R v Law (2002) 19 CRNZ 500 (HC), a euthanasia case, in which the High Court imposed a finite term of 18 months’ imprisonment. The Court held, at [51]–[53], that the circumstances of the offence were such that a sentence of life imprisonment would be manifestly unjust and accepted the defence submission that the full range of sentencing options under the Sentencing Act was available. Mitigating factors were the offender’s age, health, motives, guilty plea, acceptance of responsibility, remorse and previous good character.
780Wihongi (SC), above n 762.