R v Knox

[2016] NZHC 3136

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS, INCLUDING THE RESULT (EXCEPT THE FACT THAT A WOMAN WAS SENTENCED HAVING PLEAD GUILTY TO THE MURDER OF A 20 YEAR OLD VICTIM) UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST

PERMITTED

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2016-006-000512

[2016] NZHC 3136

THE QUEEN

v

DONELLA MARIE KNOX

Counsel:	M A OʼDonoghue for Crown S J Shamy for Prisoner
Sentencing:	16 December 2016

SENTENCING NOTES OF WILLIAMS J

[1]    Ms Knox, on 16 May  this year  you killed  your  daughter  Ruby who was  20 years old at the time. You did this by administering 20 0.5mg Risperidone tablets to sedate her. When she was sedated, you placed both hands over her mouth and nose to prevent her from breathing and then you held your hands there until breathing ceased. You then went to the Blenheim Police Station and gave a full confession.

[2]    Following a sentence indication you pleaded guilty to murder and it is my task to impose the sentence of this Court upon you.

R v KNOX (SENTENCING NOTES) [2016] NZHC 3136 [16 December 2016]

[3]    The law places the highest value on human life. That’s why it imposes the highest penalty known to law – life imprisonment – where a life has been intentionally taken, unless that is, it would be manifestly unjust to impose that penalty. The presumption in favour of a life sentence for murder is very strong indeed in our law. The sanctity of human life, and therefore the gravity of this particular offence and the necessary culpability of an intentional killer, means that the overriding value in sentencing will almost always be to denounce the offence and to deter others from similar offending.

[4]    Ruby was severely disabled, as you know and as I’m going to outline further on in these notes. What’s important to note at this stage is that her disability in no way reduces the value of her life.1 I must be careful to uphold the rights of the weak, the vulnerable and the disabled. The law cannot be seen somehow to treat the life of a person with profound disabilities as any less valuable than that of anybody else.

[5]    So the framers of the law intended exceptions to the penalty of life imprisonment for murder to be rare indeed. But all relevant circumstances (both yours Ms Knox, and those of the offending itself on that day of 16 of May this year) have to be taken into account2 when I determine whether a life sentence in your case would be manifestly unjust.

[6]    In general, the factors that provoke a person into loss of self control will be relevant in considering whether life imprisonment is manifestly unjust. These might include the nature, duration, gravity and timing of the provocation; the timing and proportionality of your response; whether the response was caused by the provocation,3 as well as factors such as your psychological state and functioning, and your personal or psychological history.

[7]    Here Ms Knox in short, I must look at all of the factors in your case to determine whether the presumptive penalty of a life sentence would be so clearly inappropriate for you to be called manifestly unjust. And if I reach that point, I must

1      R v Albury-Thomson (1998) 16 CRNZ 79 (CA) at 85.

2      R v Cunnard [2014] NZCA 138 at [15].

3      Hamidzadeh v R at [2012] NZCA 550, [2013] 1 NZLR 369 at [62].

then decide what a finite sentence would be, balancing as Mr O’Donoghue said, the sanctity of human life and the particular circumstances of your offence, and you, the offender.

Facts

Background

[8]    So I’m going to start by outlining some of the facts. First, some of the history of yourself and Ruby before moving to the months, days and weeks that led to her killing. So let’s start with the beginning.

[9]    Ruby was severely disabled her whole life. Dr Shapcott who provided a statement identified the beginning of Ruby’s problems as severe autism spectrum disorder (that meant she had no speech facility, she could not communicate except indirectly and involuntarily in fact through her behaviour; and she had chronic behavioural difficulties including over-the-top aggression, a propensity to self harm as well as harming others; and of course she had no ability to co-operate with medical examinations). Perhaps most significant of all she had no ability to empathise. She lived almost entirely within her own shell. She also suffered from severe intellectual disability (a condition separate from her autism), chronic constipation, spina bifida, complications relating to spinal rod surgery undertaken when she was 13, gastro- oesophageal reflux, seasonal asthma and rhinitis, a history of anal fissures (related to the chronic constipation), haemorrhoids and incontinence, previous menstrual difficulties, and hip pain. Despite the extensive assessment and investigations, a clear overall diagnosis for Ruby was never fully established.

[10]   Ruby’s problems began early, and you reported that you knew something was wrong really from the outset. Within her first year she presented as a “floppy baby” with poor muscle tone. She had repeated chest infections and febrile convulsions as well. She was assessed by paediatric specialists at the age of one. And at 18 months, she presented with global development delay and regression in language development which progressed to a failure to acquire any language or speech. From two, she was repeatedly tested for epilepsy, but the diagnosis was eventually discounted in 2006.

[11]   From two, Ruby exhibited what was called “complex behaviour disturbance”, characterised by increased physical activity and a lack of social awareness. She would pull hair; head butt and scratch other children. She would attack animals and you. I saw these things for myself on the 20/20 documentaries that were provided to me for viewing by legal counsel. In a sense I met Ruby as a small child and then as an older adolescent. Anyway you said, and it’s obvious that this was the case, Ruby had “no appreciation of her aggressive behaviour or the hurt or fear that she inflicted on others.” She meant no-one any harm. Her behaviour was, in a sense, entirely innocent. She frequently banged her head against walls or windows, and cracked doors and broke windows. Safety glass had to be installed in your home to reduce the risk of serious injury to her. And finally at the age of six, Ruby was diagnosed with Autistic Spectrum Disorder.

[12]   You did report to Dr Monasterio that when Ruby was five you considered killing yourself and Ruby by driving the both of you off a cliff. You felt hopeless and helpless about Ruby’s deteriorating health and suffering, and the lack of support and social isolation that comes with rearing a child with Ruby’s difficulties. You disclosed these thoughts to the 20/20 documentary that I viewed. You said to Dr Monasterio that the suicidal thoughts in fact stopped when the programme was aired, and people came to rally around you.

[13]   There was more. Ruby had severe constipation from the age of 18 months, leading to multiple hospital admissions for treatment of a condition called fecal impaction. This was difficult to treat and of course it exacerbated her already high behavioural disturbances. Ruby had to be tied to the toilet for several hours to achieve bowel motion; that in itself was a difficult process to maintain, and she frequently, understandably, soiled herself. She eventually had a surgical procedure when she was 14, which involved making a small opening in her lower abdomen (called a stoma), which was utilised to flush a salt solution into her colon to produce bowel movements. The flushing had to be performed every two days. It was a difficult and time consuming process because of Ruby’s unsettled behaviour. There were also difficulties and infections arising from this particular problem which required hospitalisation as a result.

[14]   All these problems increased as Ruby grew older, increasingly tall, strong and heavy. From when Ruby was seven, you were convinced that she suffered from chronic pain reflected in what you saw as sharp behavioural changes. But you had difficulty convincing the medical team of this. When she was around 11 you moved to Nelson to try get her better support. The pain was eventually attributed to a spinal deformity or scoliosis, and surgically treated as I’ve said, when she was 13 with the insertion of a spinal rod. This difficult procedure resulted itself in complications and required three months of rehabilitation in hospital. But, it alleviated the pain eventually and resulted in increased functioning and much fewer periods of violent behaviour. It helped immensely. This meant that Ruby was able to manage at school and with caregivers, allowing you periods of respite, and might I say, normality.

[15]   Throughout this time, you were constantly seeking answers to the challenges of Ruby’s conditions and doing your best to care for her. Dr Shapcott (who was your GP in 1996-97 and again in 2015-16) says you were highly concerned about Ruby’s welfare. Caring for her was a major challenge, the doctor said. You took her to many GP appointments and hospital admissions, you cared for her at home, you were involved in her schooling, and struggled to find suitable accommodation for both of you. You most certainly did not want Ruby to be institutionalised.

[16]   Dr Foley was both your and Ruby’s GP until you shifted to Nelson in 2007. He says he consulted with you on more than 150 occasions. He got to know you well, and he was in his words “privy to the chronic and exhausting issues you faced and the frustration you both experienced.” – both you and Ruby he means. Dr Foley says that Ruby was always large and strong, weighing on average twice as much as a child of similar age. Controlling her during outbursts and attacks was, he said, “difficult, stressful and physically dangerous”.

[17]   Dr Foley said he was always “immensely impressed” with your ability to care for Ruby. You always attended appointments prepared with background information of additional support and treatment options that you wanted to explore. You were a strong and caring mother, he said, and a constant advocate for Ruby. Ruby didn’t mix well with other children, understandably, and because of her thoughtless aggression, she was unable to play with them without being carefully supervised. You couldn’t

maintain normal social relationships because of Ruby’s behaviour as you were seen by others as a threat to their children or even to themselves.

[18]   Throughout this time, the common theme and comments from all who knew you and Ruby that I have seen, whether they knew you professionally or personally, was that you loved and cared for Ruby constantly, diligently, unselfishly and unconditionally. You were her tireless advocate with health authorities and health professionals. You simply refused to give up and you refused to take no for an answer. You were, it must be said, supported by authorities with respite care and constant engagement from specialists and team of specialists and multiple general practitioners. But it must be said the burden of Ruby’s care lay with you, a burden you accepted willingly.

[19]That’s the long background. I now want to talk about the last six months.

Last six months

[20]   By the time Ruby attained the age of 20, she was large, tall and strong. Her functioning, it was said, deteriorated and she reverted to violent and disruptive behaviours. This meant that Ruby could not attend school nor were respite workers always able to care for her. She was just too big a handful. She also presented with broken sleep and increased physical activity throughout the night – a reality of course that impacted upon your sleep. You took Ruby to the emergency department at Wairau Hospital 10 times between February and May this year. Your view was that Ruby was in pain though she could not of course communicate that except through her behaviour. The medical team disagreed with you at first, and said that Ruby had behavioural problems that needed to be treated with medication.

[21]   During the six months prior to Ruby’s death, you felt increasingly desperate and frustrated. You felt that the medical fraternity had brushed you off. I hasten to add these are your feelings. Whether that’s objectively true is a whole other question, but I’m reflecting your feelings for present purposes. The paediatric team withdrew because Ruby had turned 20, and this indicated to you that there was nothing further they could offer Ruby, at least that’s what you said.

[22]   Dr Shapcott notes that in February 2016, you took Ruby to Starship Hospital in Auckland for a review of her posterior spinal fusion. You communicated to the orthopaedic surgeon that you felt Ruby was in a lot of pain. The specialist agreed that Ruby was in pain, but, without arranging further investigation, concluded that it was not coming from her back. The specialist wrote a letter to the general physicians at Wairau Hospital requesting a general medical review. This was refused on the grounds that she had seen her paediatrician in Nelson six weeks previously, and was due to see him again in April.

[23]   Dr Shapcott says this was unfortunate because the Nelson paediatrician was seeking to transfer Ruby’s case fully to Marlborough (as she was 20 and no longer living in Nelson). Dr Shapcott says that this would have been an appropriate opportunity to transfer Ruby’s specialist care to what she described as a sympathetic specialist who could co-ordinate her needs. This opportunity, it seems, was lost.

[24]   Subsequently, there were attempts to ascertain the potential causes of this pain that was there but undiagnosed. Ruby was referred to Dr Secker, the surgeon who had created the stoma, and a gynaecologist, Dr Brown. It was Dr Brown who noted that “Donella today is tearful and completely stressed out”. The two doctors examined Ruby under general anaesthetic on 27 April. They found nothing to explain the pain.

[25]   You took Ruby back to the emergency department on 9 May. The medical records record a behavioural crisis “possibly related to back pain for a migrated spinal rod”. They note that you felt that Ruby was displaying unusual behaviour, indicating, in your mind, pain. You were concerned that you were so stressed that you may harm her. A CT scan was done and then sent to Wellington for further interpretation. At a meeting on 12 May, Dr La Varis explained that although the CT scan had shown some movement of the rod in Ruby’s back, it was still to be determined whether that was the cause of the pain. She also explained that none of the medical staff had observed Ruby being violent or showing any bad behaviours or facial expressions that would suggest she was in fact in pain.

[26]   You were relieved that a physical basis for the pain had been identified, but also distressed, because, you say, you were told there was just no additional treatment available to relieve the pain.

[27]   At the meeting, you explained to hospital staff that you were taking Ruby home; that this would help you both sleep better – Ruby wasn’t sleeping well at the hospital because of the nature of the environment; and you were taking her home also because you were not convinced that there was really anything to be gained by staying.

[28]   Before you left, Dr La Varis asked if there was any chance you would do Ruby any harm and you said no. Ms O’Neal, a hospital social worker, walked to the car with you, and you again expressed that you were grateful about the scan. She called you the next day and you said to her “You’re just one of them. I don’t know who to trust, I’m done with talking, I don’t need any help, we are fine, thank you.” and you hung up.

[29]   Then on 16 May – that fateful day, you received a copy of a letter from the orthopaedic surgeon, Dr Palmer. The thrust of it was that the CT scan had disclosed “no obvious reason for severe pain.” A second opinion was sought from the surgeon who performed the rod insertion procedure, but the letter ended with a note of caution, Dr Palmer wrote “surgery will not be easy and there has got to be a reason to do it.”

[30]   You say you took this to mean that further surgical assistance for Ruby was unlikely.

[31]   It seems this letter was a trigger for your decision to take Ruby’s life. You told the Probation Officer that when you read the letter a feeling came upon you and you thought to yourself “This has to stop now.”

[32]At about 1pm on that day you sedated Ruby and suffocated her until she died.

[33]   Now before I turn to the sentence calculation, there are two aspects of the facts that I want to particularly to address. These are the nature of your relationship with Ruby over the 20 years of her life, and your perception at the time of her death of the

available options for her treatment and care. These factors are very relevant to your mental state at the time of the offending and therefore relevant in law. Although Dr Monasterio also provided information on your troubled upbringing and mental health more generally, these are not as pertinent, as my focus, as I have said, is on your mental state on 16 May this year. So that’s where I’ll focus.

[34]I want to begin with the nature of your relationship with Ruby.

Nature of your relationship with Ruby

[35]   Dr Foley, who as I have said, was your GP, notes that Ruby “would frequently attack [you]”. He says that he witnessed this on several occasions, and never saw you respond with violence – across 150 consultations. Rather, he said, you appeared to understand Ruby and you were constantly concerned and stressed by her unpredictable violent outbursts.

[36]   Dr Foley describes you as “very affectionate and caring towards Ruby”. He said he never saw Ruby reciprocate your affection and care. He said your relationship with Ruby was akin to an abusive partner relationship where your care was met with repeated violence. You told Dr Foley you tolerated this because you knew Ruby did not understand, appreciate or even intend to cause the harm that she did. Dr Foley said, “My vivid memories of [you Ms Knox] were of a mother who cared for and protected her daughter but was constantly physically and mentally exhausted.”

[37]   Dr Monasterio interviewed you, and a number of others about this case and reviewed 5,000 pages of medical, police and family background, recorded that collateral sources indicate that you “remained a devoted and caring parent despite limited supports, recurrent and severe aggression from Ruby, financial constraints and the absence of a clear diagnosis and treatment approach”. The relationship between you and Ruby, he said, was “unusually intense and challenging … as it dominated [your] life, was associated with violent behaviours from Ruby, and mostly not accompanied by emotional reciprocity.”

[38]   I think Dr Foley was right to call your relationship abusive. Not abusive in the usual sense, but abusive because you were tied emotionally to, indeed completely

dominated by, an adult-child who could not reciprocate your love, who tested your tolerance to breaking point with violence towards you and others, with wider behavioural difficulties that restricted social contact with others, as well as restricting any career or wider life ambitions you might have had, and with almost constant medical and psychological issues requiring you to deal with medical services. As almost all who have known you have said, being Ruby’s mum was exhausting in every possible sense.

[39]That’s the first important aspect I wanted to cover.

Your perception of available options

[40]   The second is your perception of available options on 16 May. That is the day when you received Dr Palmer’s letter. This aspect, the availability of options was in turn informed both by the 20 years you spent caring for Ruby and by the events in the months and days leading up to you taking up her life.

[41]   You reported to Dr Monasterio that the past 20 years of your life had been entirely dominated by caring for Ruby. As well as having to deal with complex medical issues and challenging behaviours, you complained that Ruby didn’t receive integrated health care or adequate treatment. You saw more than 30 specialists across four District Health Boards. You were particularly distressed by the absence of a clear diagnosis and a lack of integrated care. And you constantly reflected that perception.

[42]   You travelled around New Zealand and overseas, seeking help for Ruby and answers for her condition.

[43]   A referral letter from Dr Cameron at the Wairau Community Clinic to the Nelson Paediatric Unit dated 29 February this year requested an urgent appointment, noting that you were “at wit’s end”, he said, with “very frequent presentations” to the emergency department, “demanding that something must be done” and that “combinations of medications were not helping”. The letter noted Ruby’s dental pain, stoma problems, recurrent infections and hip and groin pain. It also noted that you became angry and upset when it was put to you that you were just emotionally

distressed and not thinking straight, and that Ruby should in fact be considered for residential care.

[44]   Dr Monasterio reported that by the time of the offending on the 16th, you said to him that you had suffered for months of sleep disturbance, anxiety with panic attacks and mounting frustration and distress, in addition to coping with what you felt were limited supports. You were increasingly socially isolated and financially struggling. You formed the view that “there would be no relief to Ruby’s distress and suffering, and that your options were essentially exhausted.” You said you saw no hope for improvement.

[45]   Dr Foley said that “providing the constant care required for Ruby was extremely difficult as there were few carers who could provide sufficiently skilled support.” You often said to him, he said, that you could not get sufficient respite care. You got three hours a day, according to him, in the context of Ruby needing 24 hour supervision. You also did not have a partner to share the load with you. So he said you were “frequently and chronically exhausted”.

[46]   Your friend, Leslie Henderson-Craig, reflects some of these ideas but in the more intimate language of a friend and advocate. She also had a disabled daughter. She confirmed that you felt totally helpless during this time and let down by the system and had felt this way for some time. She said that in the two months or so prior to Ruby’s death, you reported significant changes in her behaviour. And that you knew from previous experience that this meant pain. That, Ms Henderson-Craig said, is what led to the number of appointments and examinations that I’ve talked about.

[47]   Ms Henderson-Craig said that you and Ruby weren’t sleeping. Your GP was in Picton and you were in Blenheim, and you felt that no-one local was taking your concerns seriously or urgently, and so you’ve taken Ruby to the emergency department on a number of occasions.

[48]   She said that you had fought harder than anyone I know for a good life for your child and you fought alone. You put aside your own needs to provide all you could for Ruby, in her words. She said you asked for help from everyone you could think

of. She said “this is a tragic end that in no way reflects the care, strength and deep love of a mother for her daughter.” She says “I believe both Ruby and [you] were failed systemically by [and these are her words], a narrow minded, poorly trained body of people whose jobs start at 8am and finish at 5pm who took a step away when they should have taken a step closer”. That’s her view.

[49]   Your brother Daniel Knox, was also asked to comment on your mental and emotional state the last two times he saw you and Ruby together. He says the two themes that you discussed were Ruby’s highly agitated state, and your anguish at Ruby’s poor medical treatment. He noted that on both occasions, you began to cry when discussing Ruby’s state. He said it was out of the ordinary for you to cry in front of him, and he took it as a concrete sign that you were desperate. He said the thing he remembers most acutely from this discussion was your sense of sadness at Ruby’s pain and agitation and your inability to diminish it. He said “It felt like a cruel torment for [you] as a loving mum to see her daughter suffering.”

[50]   Daniel said at the time you felt that your concerns were “being ignored, dismissed as a hysterical mother, or deemed too hard to solve.” You were trying to find a new GP which added to the stress, cost and confusion, he said. You felt that there was no consistency of care; that medications known to clash were often administered; that no-one had a complete handle on the situation. When you brought this up, he said, you were dismissed as a meddler. Daniel said that your concerns, and these were his words “were lucid and consistent, and extremely reminiscent of the time when Ruby had previously been in an agitated state due to pain, before her back surgery as an adolescent”. He said the difference this time seemed to be a complete failure of care by medical professionals.

[51]   Daniel ends by saying that the emotions are difficult to convey and process, but, he said, one thing that he never questioned was your fierce love and devotion for Ruby.

[52]   Now these were the perspectives of those who were close to you in family or friendship terms, with your situation and of at least some of the health professionals who helped you over the years.

[53]   But health service and support providers give a different perspective on this time. Pamela Maxted, a needs assessor/service co-ordinator for an organisation called Support Works says that in fact you received 252 days a year of respite care and that you could use whoever you wanted as a carer. Ms Maxted says this is a very high allocation, in fact higher than anyone else on their books. According to their records, you “would appear to be getting regular and sufficient breaks.” You also had a housework allocation, but you cancelled this several months prior to May, saying that the organised times did not suit you. Ms Maxted tried to get the housework reinstated, but when they phoned to make an appointment, she said you would not commit to a time.

[54]   Ms Maxted says that “[you] unfortunately [were] one that dwelled on the past and what [you weren’t] getting, [you] always felt [you weren’t] being supported when in reality [you were] getting more than many of [their] clients in similar situations.” Ms Maxted also discussed the transition to adult services as a result of Ruby turning 20 and she noted that it is a hard time for parents, as the doctors they are familiar with are no longer there and it can be perceived that people no longer want to help. But Ms Maxted said, the reality is this move had to happen at some point.

[55]   Ms Maxted said “I believe [you] just wanted answers but every test that was done would come back negative and as a parent this was probably just not the result that [you] would want.”

[56]   Ms Maxted says that Ruby was in fact offered a residential place at Trolove House in Nelson more than once in 2009 for respite. But she said you did not accept additional residential respite options because it was clear this was not how you wished to be supported. You said to her that medical staff had been suggesting to you that Ruby be put in care, and you were angry that this was raised as a solution at all in your discussion with support organisations.

[57]   In summary then, there are medical professional and officials who deny that there was insufficient support for you and Ruby and they deny that you were justified in feeling painted into the corner that you claim you were painted into by the 16th of May 2016. In fact, they say support for you was unprecedented in the district and that

they were doing all they could with the resources they had to support you and Ruby. It is important that I note this aspect to reflect a properly balanced view of matters. There are two sides to this narrative: one of entrapment by circumstances and the loss of alternatives; the other of reasonable support within the resources available to the system and ongoing attempts to provide alternatives in a most difficult situation for all.

[58]   The important point as far as I’m concerned, is that it’s not necessary for me to resolve this conflict in order to determine the justice or otherwise of a life sentence or of your final sentence. It is not my task to judge the support that you received from the public health system. That may be for another forum and another time. You see Ms Knox my task is to judge you. It is enough for me to accept, as I do, that your feeling that the system had constantly failed you was long held, genuine and deeply felt. In your mind, Ruby’s unresolved pain and the burden that placed on you in terms of managing her going forward, left you with no viable alternative. I think you felt that no-one in authority really understood either Ruby’s or your suffering in this regard, and that was the problem. The fact that your feelings about the inadequacies of the system were shared to some extent by others both medical professionals and lay people who had been on this journey with you is relevant to me but only in the sense that it makes your own belief more plausible and therefore less likely to be self- serving. Beyond that, the right and wrong of it, is irrelevant to me.

Law

[59]   Well Ms Knox, I have traversed your and Ruby’s backgrounds and the background to Ruby’s death and your part in it in great detail, and I’ve done that on purpose as an attempt within the paper I have before me, and there’s been a lot of it, to provide a fully dimensioned picture of your offence and its background. In going through this exercise, I have become very sure of one thing: to sentence you to life imprisonment for Ruby’s murder would clearly be inappropriate, or, in the words of the law, manifestly unjust.

[60]   Counsel have pointed me to a number of cases where the manifest injustice standard has been met before. It’s not my practice Ms Knox to engage in lengthy

discussions of the case law in a sentencing exercise which I regard to be primarily a conversation between you and I. But this is a particular case and I’m going to have to talk about some law in more detail than I would usually and I ask for your patience.

[61]   These cases fall into two categories which can be broadly described as mercy killings and murders by a person who has suffered lengthy abuse. The first category

– mercy killings, is exemplified by the case of R v Law, where a 77 year old man killed his wife, who suffered from Alzheimers, while she slept.4 It transpired the couple had made a pact that if either of them developed Alzheimers, one would take the other person’s life. The husband was sentenced to 18 months’ imprisonment, despite the fact that the offence was murder, with leave to apply for home detention. Finite sentences have also been imposed on offenders who kill their intimate partner following a prolonged history of abuse.5 I won’t go through those but they’re well- known. Finally, although the charge against you is murder, counsel have pointed to the case of R v Albury-Thomson, where the defence of provocation was successfully argued at trial, leading to a manslaughter conviction.6 What makes this relevant is the facts underlying it and later changes to the law. So I’m going to return to this case shortly. I simply ask you for patience while I have a discussion primarily with the lawyers.

[62]   Yours is not a standard mercy killing case (if there is such a thing), nor is it a parent/child equivalent of the standard abusive relationship case (if there is such a thing). Ms Knox your case is more complex than that. It has strong elements of both categories interwoven into a single 20 year narrative. Perhaps if relevant facts were able to be disentangled and isolated into one or other of these two categories, neither narrative would be sufficient alone to reach the standard of manifest injustice as required by law; but your case Ms Knox, reminds me that the dark circumstances that lead to homicide reflect the infinite variety of human experience, and my task is not to search for a deserving label, like mercy killing or abusive relationship, but to test the facts as they are provided to me against the standard of manifest injustice.

4      R v Law (2002) 19 CRNZ 500 (HC).

5      See, for example, R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775 and R v Rihia [2012] NZHC 2720.

6      R v Albury-Thomson, above n 1.

[63]   In short Ms Knox, dumbing this story down into a previously coined label does not necessarily help me come to a just answer here. Because your circumstances are at once complex and singular.

[64]   The case of Albury-Thomson is one which has a number of elements in common with your situation. In that case, Ms Albury-Thomson killed her 17 year old daughter, who was also, it transpires, autistic – although higher functioning than Ruby, at least by my reading of the law report. The daughter had limited communication, she chanted loudly at night, frequently ripped clothes, bedding and furniture covers and the like. She deliberately wet herself and she constantly displayed inappropriate sexual behaviour in public. She lived in a care facility for 36-38 weeks of the year, but she stayed with her mother during school holidays, and had been with her for two weeks at the time Ms Albury-Thomson killed her. She was supposed to have respite care for two or three days a week during these holiday breaks, but this was terminated after the first week because of the daughter’s disruptive and destructive behaviour. Ms Albury-Thomson became sleep deprived and ran out of food and bedding. She sought help, and obtained some day care and also food. On the night of the homicide, the daughter was chanting in her bed and Ms Albury-Thomson asked her to stop. The daughter just laughed. The mother decided to kill her, and eventually did so by strangling her to death.

[65]   In that case, the jury returned a verdict of manslaughter on the basis of the partial defence of provocation. This partial defence has now been abolished. The High Court on the count of manslaughter imposed a finite sentence of four years.  Ms Albury-Thomson appealed, and the Court of Appeal reduced the sentence from four years to 18 months.

[66]   Four years later ironically, given that it was a four year sentence, when he introduced the bill into Parliament that brought more flexibility to sentencing in murder cases, the very flexibility that I’m dealing with here today, the Minister of Justice specifically referred to the Albury-Thomson case as an example of where a manslaughter verdict in preference to murder verdict may just have been the result of the jury choosing to compensate for the harsh inflexibility of the old mandatory life

sentence regime.7 In other words, the circumstances of that case – and by extension, your case Ms Knox – are exactly the kind of circumstances that the “manifestly unjust” option now in place was designed to address. In addition, the “conduct of the victim” is a mitigating factor in the Sentencing Act (s 9(2)(c)), leaving some room for provocation type factors to be relevant in sentencing.8

[67]   Now Mr O’Donoghue argues that your case is different to the Albury-Thomson case on the basis that in Albury-Thomson the mother was placed in a situation where respite care was just straight unavailable through no fault of her own, and there did not appear to be any other means of support for her in place. In other words he argued, she had no options at all. The Crown says that you were different. You did have other options. I don’t agree with that approach. In my view, it is enough that the Crown accepts that you had diminished responsibility at the time you killed Ruby. The Crown accepts that you are not to be held up to the standard of a reasonable person. This is not an objective exercise, it’s a subjective one, and it’s your subjective view that ultimately counts.

[68]   Therefore, what matters is that your belief in the lack of options was genuine, even if there was evidence that it was wrong. And I have no doubt that your belief was genuine, no-one does. The views of some health professionals, and your friends and family, which I have traversed, are relevant evidence showing the genuineness of that belief.

[69]   Accordingly, I am satisfied that a sentence of life imprisonment would be manifestly unjust. That requires me to address the finite sentence.

Finite sentence

[70]   There is no doubt that a term of imprisonment is required to mark the fact that you took a vulnerable life whatever the circumstances and provocations. I turn to that

7      (14 August 2001) 594 NZPD 10910-10911. The previous legislation, the Criminal Justice Act 1985, required a mandatory imposition of life imprisonment.

8      The Select Committee in its report on the Crimes (Provocation Repeal) Amendment Bill 2009 also commented that the “manifestly unjust” threshold “is flexible enough to capture appropriate cases in which provocation-related factors are present.” And the Court of Appeal in Hamizedah, above n 1, confirmed that provocation-type factors are relevant in sentencing for murder.

sentence now. I agree and affirm that the intentional taking of a life is to be marked with a prison sentence that recognises the value of human life and particularly the lives of the most vulnerable. They are the ones the law must protect most of all. Human life is precious, and Mr O’Donoghue is right that it’s my task to balance the preciousness of that life with the circumstances of its taking – an unenviable task I’m sure you’ll agree. But while human life is precious it ought not to blind us to the wider circumstances of the particular case before the Court. And the circumstances of this case, in my view, are singular indeed. Albury-Thomson comes close to these facts, but even that case is not on the same level as your case, in my view, Ms Knox. You had full-time solo care for 20 years. You battled with the system you believed fell short for 20 years. You were sleep deprived for much of the last six months before May 2016. This, in my view, is a once in a generation case.

[71]   The Crown submits that the appropriate finite sentence would be  eight to    10 years. The Crown points to two abusive relationship cases9 and one case of episodic psychiatric illness10 in support of that conclusion. Your counsel by contrast suggests that a sentence in a band between two to six years is more appropriate, relying on the earlier mercy killing cases such as Law that I have mentioned.11

[72]   For the most part and with the exception of Law, the cases in which there were lower imprisonment levels were often manslaughter cases, and of course this is a murder case, and this must be marked accordingly. But I do not think I am bound to an eight to 10 year band on these facts. Rather, it is my task to assess the complex facts of your case on their own merits. This is a spectrum of points, not a series of less finely calibrated silos into which I must place your case.

[73]   As I have said, this is not a classic mercy killing case in which the sole reason for ending a person’s life was that it was the only means of ending their suffering. There is, as I have said, an element of this in terms of your perceptions and the circumstances that caused you to do what you did but it can’t be said that the pressure on you was as great as it was in some of the earlier cases referred to by counsel.

9      R v Wihongi, above n 5, and R v Rihia, above n 5.

10     R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011.

11     R v Albury-Thomson, above n 1, and R v Law, above n 4.

[74]   As I have said also, there is a strong element of psychological harm from the unavoidable circumstances of what I call, your abusive relationship with Ruby, and it is in fact the combination of these two elements in your case that provides a proper and fair measure of your culpability overall.

[75]   Now, in the Albury-Thomson case as I’ve said, a sentence of four years was replaced on appeal by a sentence of 18 months. That sentence rightly reflected the fact that was a manslaughter verdict case. Whatever the motivation for that verdict, it must be respected and it is only right that I impose a longer sentence in this case to reflect the conviction for murder than in that case because in this case you have pleaded guilty to intentionally taking Ruby’s life.

[76]   Ms Knox, as I have said there is no doubt that you genuinely believed that there was no other option but to end Ruby’s life. You struggled for 20 years to seek medical help for Ruby. While you had some successes in alleviating her pain, you had lots of failures and, as the doctors have reflected, she was never fully diagnosed. In the last six months of her life, she appeared to be in increased pain, and medical professionals offered no clear answers, and perhaps on reading that letter of the 16th, you felt they could offer no clear answer. You were stressed, exhausted, and unable to cope.

[77]   There’s a particular passage in the Albury-Thomson case which I think fits this case rather clearly. The Court of Appeal referred to the “hopelessness which must have overtaken the appellant [Ms Albury-Thomson] as, constantly deprived of sleep, she contemplated the situation of having to cope” with both her daughter’s present stay with her and also “the repetition of future episodes stretching out as far as the eye could see” when she came home.12 In your case, Ms Knox, you had primary care of your daughter not for intermittent periods but for her entire life, and her suffering and resultant unmanageable behaviour had no foreseeable resolution at all in your mind. The combination of those factors took an enormous toll on you, and this was of course exacerbated by the particular hopelessness you felt after Ruby’s most recent hospital admission.

12     R v Albury-Thomson, above n 1 at 87.

[78]   For all of the factors discussed at length here, I consider an appropriate starting point is six years’ imprisonment to acknowledge the intentional taking of a precious life balanced alongside your reduced culpability for the offence. I deduct eight months for good character and for the minimal prospect of any further offending, and then 25 per cent – that is 16 months, for your immediate acceptance of responsibility followed by your guilty plea.

[79]Please stand Ms Knox.

[80]   Ms Knox, for the offence of the murder of Ruby Knox, I sentence you to four years’ imprisonment.

[81]Stand down please.

Williams J

Solicitors:

Crown Solicitor’s Office, Nelson for Crown

Bridgeside Chambers, Christchurch for Prisoner