R v Lawrence
[2021] NZHC 2992
•5 November 2021
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CRI-2021-041-247
[2021] NZHC 2992
THE QUEEN v
CHERYLENE MAY LAWRENCE
Hearing: 5 November 2021 Counsel:
S B Manning for the Crown M J Phelps for Ms Lawrence
Sentencing:
5 November 2021
SENTENCING NOTES OF GWYN J
Solicitors:
Crown Solicitor’s Office, Napier
R v LAWRENCE [2021] NZHC 2992 [5 November 2021]
[1]Cherylene May Lawrence, you appear for sentence on one charge of murder.1
Three strikes
[2] Before I talk about the sentence I am required to tell you that, as you have pleaded guilty to and been convicted of murder, you are now subject to what is called the three strikes law.2 I am obliged to give you a warning of the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists the “serious violent offences”.
(a)If you are convicted of any serious violent offences, other than murder, in the future and if a Judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.
(b)If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the Judge must sentence you to a minimum term of imprisonment.
Introduction
[3] In sentencing you today I don’t just pluck a figure out of the air: I have to apply the Sentencing Act 2002 (the Act), which sets out the purposes and principles of sentencing. The purpose of sentencing in your case is to hold you accountable for the harm you have caused through your offending, and to publicly acknowledge that harm; to denounce and deter your conduct; and to assist in your rehabilitation and reintegration into society.3 What that means in practice is that I have to look at the whole situation and do what I can to mark the seriousness of what you have done, but also to acknowledge who you are and your particular circumstances and background.
[4] I will first set out your offending, explain your personal circumstances, and summarise counsel’s submissions. I then consider the appropriate sentence. Before I
1 Crimes Act 1961, s 172; maximum penalty life imprisonment.
2 Sentencing Act 2002, s 86B.
3 Section 7.
do so I want to reassure you that the sentence will not be more than I indicated to you at the sentence indication hearing on 3 September 2021.
[5] Firstly, because sentencing is required to be a public process, I have to talk about the detail of what happened, and I acknowledge that this will be distressing for you, but I need to do that.
The offending
[6] You have pleaded guilty to the murder of your daughter, Chevana Fox, who was 28 years old at the time of her death on 1 February 2021. She suffered from juvenile Huntington’s disease, diagnosed when she was 16 years old, which causes the progressive degeneration of nerve cells in the brain and results in movement, cognitive and psychiatric disorders. Chevana was approaching the end phase of her life, and her treatment was palliative, by which I mean it was to relieve pain, since her condition could not be cured. She had previously been in fulltime care facilities, but in November 2020 she was discharged into your care. You had some support from Community Connections, a community care provider: a day shift from 8.00 am to
2.00 pm seven days a week; and a night shift five or six nights a week, although I understand there were difficulties with the provision of regular overnight care.
[7] It is clear that caring for Chevana was very difficult; she was unable to read or write and had difficulty talking, she lacked mobility and needed to use a wheelchair, she had to be assisted with showering and eating, and she needed to wear disposable nappies. Chevana would regularly have outbursts of crying, and she would regularly lash out at caregivers, principally you, physically (by biting, kicking, and punching). She also suffered from significant delusions, which she acted upon as if they were real.
[8] You would often remain awake through the night, even if a caregiver was present, because you were concerned Chevana would attack the caregivers. You became sleep-deprived, and your mental health became affected by the pressures of having to care for Chevana. From mid-December, you became “despondent” about Chevana’s lack of quality of life, and expressed concern that having Chevana at home was “not working”. Text messages you sent to your mother at this time show the difficulty you were experiencing.
[9] It appears by mid-January 2021, there had been some changes in Chevana’s medication, which meant she slept a lot more. In the days leading up to Chevana’s death, you requested less support from Community Connections. On 30 January, you sent a day carer home because Chevana was sleeping when they arrived; and when the usual night carer was not available you declined a replacement. On 31 January you again sent the day carers home because Chevana was sleeping when they arrived. A misunderstanding about the night carer meant no carer was available on 31 January, and you were left without any support; that meant you were awake for most of the night with Chevana the night before her death.
[10] On 31 January you also spoke to the service co-ordinator for Community Connections about the possibility of not needing support from the organisation anymore. However, at 8.27 am on 1 February you phoned Community Connections and advised that you did wish to continue with their support.
[11] On 1 February, the day of Chevana’s death, the day carer arrived for her shift at 7.30 am. You drove your younger daughter to work, and returned home at 8.00 am. Chevana was still asleep, and at approximately 10.20 am you told the carer she could go (although she had been rostered to work until 2.00 pm).
[12] While Chevana was sleeping, you decided you were going to kill her and then yourself. You went outside and hung a rope noose from a tree, and then went back inside and wrote a note for your family. You then picked up a pillow and placed it over Chevana’s face, holding it down over her nose and mouth. Chevana woke up and said, “stop obsessing over me”. You then placed your hands around Chevana’s neck and squeezed tight for several minutes. You told Police Chevana did not struggle at any stage. Chevana stopped breathing, and you removed your hands from her neck.
[13] You then went outside with the intention of hanging yourself, but ultimately changed your mind. At 11.37 am you rang 111, and told the dispatcher, “Um I just flipped out and strangled her. Strangled my daughter. She’s dead.” Following the dispatcher’s instructions, you performed CPR for approximately six minutes. Chevana was transported to hospital by ambulance, and diagnosed with post hypoxic brain injury following cardiac arrest.
[14]Chevana died in hospital on 28 February 2021.
Personal circumstances
[15] In addition to the Crown’s summary of facts, which explains the difficulty you were experiencing in caring for Chevana, I have also read a psychologist’s report from Dr Stephanie Dillon, a report on your personal and whānau background from Ms Shelley Turner dated 28 August 2021,4 and a provision of advice to Courts (PAC) report dated 14 October 2021, prepared by the Department of Corrections.
[16] Ms Turner advises that you identify as Māori, of Ngāti Tūwharetoa through your father’s side, and many aspects of your life can be linked to the intergenerational disenfranchisement of Māori as a result of colonisation. You had minimal connection to te ao Māori as a child. In more recent years you have started studying towards a Bachelor of Māori Studies, which Ms Turner says was a way of “resolving the cultural deprivation that had long affected [your] life”.
[17] Ms Turner describes the difficult whānau dynamics that have been at play throughout your life, and the PAC report describes your upbringing as “turbulent”. Your mother was very young when she became pregnant with you, and your father was absent for most of your childhood. Your mother was the victim of a violent relationship while you were a child, and your primary school years were transient. You described your education as “messed up”. Your mother had a relationship with a gang member, and through this connection you became gang affiliated as a teenager. You have also experienced trauma in your adult life, notably the loss of your younger brother to suicide in 2013.
[18] You became pregnant with Chevana when you were 19, and it appears you primarily raised her on your own. Chevana was diagnosed with juvenile Huntington’s disease after she herself became pregnant at 15. You explained to Ms Turner that the pregnancy had a “debilitating impact” on Chevana’s health, and “everything just crashed down” after she gave birth. Chevana’s son is being raised by his father, and I understand he stopped contact with Chevana as her health deteriorated. Ms Turner
4 Prepared under the Sentencing Act, s 27.
explains that Chevana’s disconnect from her son was an element of significant trauma and stress for her and for you.
[19] Ms Turner and Dr Dillon both describe the immense burden on you in caring for Chevana, and watching her health deteriorate over the last 13 years of her life. The PAC report identifies your “precarious emotional state brought on by the complex and difficult challenges [you] had endured for some 13 years trying to care for [Chevana]” as the only factor that contributed to your offending. Ms Turner explains the financial hardship you suffered, partly due to having a child with such high needs. The PAC report describes the desperation, frustration, and exhaustion you experienced, leading you to believe you had no choice but to end Chevana’s suffering.
[20] Ms Turner explains that what she calls “systemic failures in the health system” are a significant contributing factor that affected your ability to care for Chevana, and the PAC report confirms you were poorly supported by health services. Dr Dillon explains juvenile Huntington’s disease is extremely rare, and she understands Chevana is the only person to have been diagnosed with it in New Zealand. For that reason health professionals did not have a complete understanding of how to properly care for Chevana or how to support you in caring for her. The PAC report records that various professional health staff and facilities were unable to adequately care for Chevana, and explains that you have struggled to understand how those agencies expected you to care for Chevana on your own, especially with another child to care for as well.
[21] As Dr Dillon notes your family members and some of Chevana’s caregivers describe you as a devoted mother. Dr Dillon describes the lengths you went to in order to provide for Chevana. The PAC report too says it is clear you loved your daughter and did everything you could to care and advocate for her. The PAC report writer also interviewed your mother, who describes you as “a kind hearted caring person who would do ‘anything for anyone’.” She says you always put other people’s needs before your own. She also confirmed the circumstances that led to your offending.
[22] Ms Turner in her report discusses “caregiver burden”, saying research supports that caregiver burden is likely the primary causal factor of your offending. She
explains you suffered immensely in caring for Chevana, and your emotional wellbeing was particularly affected. You also have another teenage daughter, but Chevana’s disease was “consuming and overwhelming”, and your life revolved around securing care for her and attempting to provide her with a better quality of life. Ms Turner also records that Chevana attempted suicide a number of times, and asked you to end her life. Chevana’s caregivers have also confirmed witnessing Chevana attempt to hurt herself or attempt suicide. Ms Turner says you believed you were acting humanely in killing Chevana, and the only reason you changed your mind about ending your own life was your concern for your younger daughter. Dr Dillon believes your motivation was not malice or anger, but came from a “profound sadness, exhaustion, and wish to ease [Chevana’s] suffering.”
[23] From her interviews with you, Dr Dillon confirms you indicate a broad range of clinical features associated with marked distress and severe impairment of functioning. Ms Turner in her report describes the “emotional distress of [your] situation exacerbating the moral dilemma [you] faced as a parent of a child suffering a rare, chronic, neurodegenerative disease”. She therefore describes your diminished wellbeing as relevant to the circumstances of your offending.
[24] You also told Ms Turner you were reliant on methamphetamine – as a coping mechanism for the stress and trauma of your situation, and also to provide stimulation to enable you to stay awake for the long hours required to care for Chevana. You told Ms Turner you were not using drugs at the time of Chevana’s death. The PAC report says you have confirmed you have not used drugs since the offending, and reports that the substance abuse screening tool places you in the low risk category.
[25] Ms Turner records that you accept full responsibility for your offending, and fully understand what you have done, but you are glad Chevana is no longer suffering. Dr Dillon confirmed there was no evidence of defensiveness, minimisation, or justification when she interviewed you about the offending. The PAC report records that you were very emotional during your interview with the writer, you feel guilty, and your risk of reoffending is considered to be low. The PAC reports concludes by saying that, given the circumstances of your offending, “the Court is asked to extend as much leniency as possible in terms of the length of sentence that is imposed.”
Approach to sentencing for murder
[26] There are a number of provisions in the Sentencing Act that apply when someone is being sentenced for murder.
[27]First, s 102 of the Sentencing Act provides:
An offender who is 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.
This is a strong presumption – it reflects the value placed on the sanctity of life,5 and it is displaced only in exceptional cases.6
[28] The Act goes on to say, in s 103(1), that if a term of life imprisonment is imposed, the Court must also impose a minimum period of imprisonment (MPI) which may not be less than 10 years.7
[29] Section 104(1) of the Act makes it mandatory for the Court to impose an MPI of at least 17 years, in certain circumstances, unless it would be manifestly unjust to do so.
[30] The Court of Appeal has recently held that when s 104(1) is presumptively engaged, a provisional conclusion on that section should first be reached, before then going on to consider s 102.8
[31] Section 104(1)(g) applies here. It says that one of the circumstances attracting an MPI of at least 17 years, unless it would be manifestly unjust, is:
(g)if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor; …
[32] Your counsel emphasised Chevana’s physical strength and aggression (which was mostly directed at you). I accept those were hallmarks of her behaviour but when
5 R v Smith [2021] NZCA 318 at [38]; citing R v Van Hemert [2021] NZCA 261 at [34]-[42].
6 R v Van Hemert, above n 5, at [36]; R v Rapira [2003] 3 NZLR 794 (CA) at [121].
7 Sentencing Act, s 103(1) and (2).
8 R v Smith, above n 5.
her condition is considered as a whole, I have no doubt that Chevana was “particularly vulnerable” in the sense required. That means that, presumptively, s 104(1) applies.
[33] When s 104 applies, the Court first undertakes a “broad-based” assessment to decide, as a matter of “overall impression”, whether the specific case falls outside of the scope of the policy that murders of that type justify an MPI of 17 years or higher.9 The Court then considers the circumstances of the offence and the offender under s 102.10
Submissions
[34] At your sentencing indication, Mr Phelps and Mr Manning both made detailed written and oral submissions. I am going to summarise what counsel have had to say about the appropriate sentence. Before I do so I want to acknowledge that the submissions from both counsel were careful and sensitive to the extraordinary circumstances of this case.
[35]First, counsel for the Crown, Mr Manning, submitted:
(a)a 17 year MPI would be manifestly unjust;
(b)a sentence of life imprisonment would not be manifestly unjust; and
(c)the minimum MPI of 10 years is appropriate.
[36]Your counsel, Mr Phelps, submitted:
(a)a 17 year MPI would be manifestly unjust;
(b)a sentence of life imprisonment would be manifestly unjust; and
(c)a starting point of between six and eight years’ imprisonment is appropriate for a finite sentence;
9 At [43] and [45]; citing R v Williams [2005] 2 NZLR 506 (CA) at [67].
10 At [43] and [45].
(d)discounts of approximately 30 per cent for personal mitigating factors (including guilty plea) are available; and
(e)an MPI is not necessary.
Life imprisonment
Section 104
[37] As I have already said, s 104 applies because of Chevana’s vulnerability.11 However, as the Crown concedes, I am satisfied that it would be manifestly unjust to impose an MPI of 17 years in your case. This is due to my overall impression of the case, and specifically:
(a)the pressure you were under in caring for Chevana, and the impact prolonged sleep deprivation had on your mental state;
(b)the emotional impact of Chevana’s deteriorating condition on you;
(c)the fact you appear to have been driven by a desire to end Chevana’s suffering; and
(d)I do not consider you pose an ongoing risk to the safety of the public.
[38] If imposing a sentence of life imprisonment, I would therefore be required to impose an MPI of at least 10 years, to hold you accountable, denounce your conduct, and deter you or others from similar offending.12 For the reasons I have already discussed, I provisionally conclude that a life sentence with an MPI of 10 years is appropriate.
Section 102
[39] I turn now to consider whether that presumption of life imprisonment should be displaced in your case. Under s 102, I must consider your circumstances and the
11 Sentencing Act, s 104(1)(g).
12 Section 103(2).
circumstances of the offence. As I have already noted, the threshold of “manifestly unjust” is extremely high and has been met in only a small number of cases. I do not propose to mention all of these cases now, which counsel have helpfully referred me to,13 but rather focus on two in particular which help to clarify the right approach in your case.
[40] In 2016 in R v Knox, Williams J found it would be manifestly unjust to impose a sentence of life imprisonment on Ms Knox for murdering her 20 year old daughter, who had been “severely disabled” her whole life.14 The victim’s disabilities caused her pain, and made her very difficult to care for. She was violent and disruptive, often attacking Ms Knox. This obviously took a toll on Ms Knox, who was a loving and devoted carer. Like you, Ms Knox felt let down by the healthcare system, became “increasingly desperate and frustrated”, and felt she had no other option.15 Ms Knox gave the victim a sedative, then held her hands over the victim’s mouth and nose until the victim stopped breathing.
[41] Justice Williams considered previous cases where the threshold of manifestly unjust was met, which can broadly be described as mercy killings and murders by a person who has suffered lengthy abuse.16 I am going to read some of what the Judge said in that case because I think he captures very well the nature and difficulties of the case. He said to Ms Knox:
[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.
13 R v Cole [2017] NZHC 517; R v Albury-Thomson (1998) 16 CRNZ 79 (CA); R v Law (2002) 19 CRNZ 500; R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775; R v Rihia [2012] NZHC 2720; R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011; R v Simeon [2021] NZHC 1371; R v Cunnard [2014] NZCA 138; R v Madams [2017] NZHC 81; R v Nelson [2012] NZHC 3570.
14 R v Knox [2016] NZHC 3136 at [9].
15 At [21].
16 At [61].
[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.
[42]I echo those words.
[43] Justice Williams also noted the circumstances of Ms Knox’s case were “exactly the kind of circumstances that the ‘manifestly unjust’ option now in place was designed to address.”17
[44] More recently in R v Smith, the Court of Appeal held it was not manifestly unjust to impose a sentence of life imprisonment on Ms Smith for murdering her 13 year old granddaughter, following an argument after Ms Smith had attempted to discipline the victim.18 Ms Smith was suffering severe emotional, physical and mental exhaustion, largely as a result of carer burnout – she cared for her adult son who was severely disabled, as well as her three grandchildren who all had behavioural and psychological issues. Ms Smith asked the victim to accompany her to a sleepout on her property, took a necktie from the main house, and used it to strangle her granddaughter.
[45]The Court held:
[57] If we were permitted to only focus upon Ms Smith’s personal circumstances, we would have reached the same conclusion as the High Court Judge [that life imprisonment would be manifestly unjust]. Her circumstances justify considerable compassion and leniency. Unfortunately, however, we must also have regard to the circumstances of the offence. We cannot minimise the vulnerability of [the victim], the gross breach of trust, the fact that Ms Smith set out in a determined manner to kill [the victim] and did so, using a method of murder that would have been terrifying for [the victim].
[46] Having had regard to those cases and some of the other cases that counsel cited to me, I turn to your particular circumstances. First I discuss your personal circumstances. Mr Manning submitted that, as in the Smith case, your personal circumstances may meet the threshold and are deserving of “considerable compassion and leniency”.19 However, he also highlighted that your personal circumstances were
17 At [66].
18 R v Smith, above n 5.
19 At [57].
not as severe as in Knox: Chevana had been living with you for only two months, rather than the 20 years including a particularly difficult six months in the lead up to the victim’s death in Knox; and you had a high level of support, some of which you had chosen to cancel in the days leading up to Chevana’s death.
[47] I do not agree that Knox is materially different because the victim had been living with Ms Knox for her entire life, whereas Chevana had been in and out of different care facilities.20 The pain of watching your daughter deteriorate over the last 13 years is unimaginable, and it is clear that Chevana was moved through so many care facilities because she had such high needs – often the professionals you were dealing with did not know how best to care for her, so that responsibility repeatedly fell to you, even if she was not actually living with you at the time.
[48] As Mr Phelps submitted, you were suffering sleep deprivation, depression, significant stress, guilt about the impact your focus on Chevana was having on your younger daughter, financial hardship, and ultimately suicidal intention. Despite a difficult early life, you have lived an otherwise prosocial life, dedicated to giving Chevana the best life you could. This dedication has come at the expense of many other things in your life, in particular your relationship with your younger daughter, and also being able to have personal relationships, as well as a significant financial cost as you had to sell your home to meet the costs associated with Chevana’s care. I agree you present a very low risk of reoffending. While I acknowledge that severe mental illness alone is unlikely to displace the presumption,21 it is clear to me that your personal circumstances would make a sentence of life imprisonment manifestly unjust.
[49] Now I turn to the circumstances of the offence. Mr Manning submitted that, like Smith, the circumstances of the offence mean it would not be manifestly unjust to impose life imprisonment. He highlighted Chevana’s vulnerability;22 the breach of trust,23 and the fact you acted unilaterally without a request from Chevana that you end her life; that the offending was at least somewhat premeditated – you made a
20 I also note Williams J held there was some disagreement about the level of support available to Ms Knox, but this was not determinative: R v Knox, above n 14, at [57]-[58].
21 R v Van Hemert, above n 5, at [40].
22 Sentencing Act, s 9(1)(g).
23 Section 9(1)(f).
decision that morning and carried it out, rather than it being a “snap” reaction;24 and the cruelty involved – unlike Knox, you did not sedate Chevana and she was awake, which would have been terrifying for her.25 His submission was that a sentence of life imprisonment was necessary to denounce your crime and deter others.
[50] I consider your case to be much more similar to Knox than Smith. Ms Smith appears to have been motivated by anger in her struggle to discipline a child with behavioural issues, in the context of carrying an immense burden of caring for others with high needs. You appear to have been motivated by your desire to end Chevana’s suffering. None of the report writers detected any malice in your actions. As in Knox¸ there are elements of a “mercy killing” in your offending, and the pressure you were under in the lead-up to Chevana’s death distorted your perception of the options available to you.
[51] I do not underestimate the significance of Chevana’s vulnerability,26 and the presence of that factor means it is less likely that the manifestly unjust threshold will be reached under s 102 because any other approach risks undermining Parliament’s intention that the most serious types of murder should result in lengthy periods of imprisonment.27 However, as Mr Phelps submitted, a mercy killing will almost always by its nature involve a vulnerable victim, and a mercy killing is consistently identified as the type of case where the presumption of life imprisonment might be displaced,28 as envisaged by the responsible Minister when introducing the law reform that created the ability to displace the presumption.29
[52] While I accept Chevana’s death would have been terrifying for her, I do not consider it to have been particularly cruel in the circumstances. I also do not accept that your actions were premediated over a long period. It appears you behaved as usual on the morning of Chevana’s death, taking your younger daughter to work, and then you say you simply became overwhelmed by the gravity of your situation.
24 Section 9(1)(i).
25 Section 9(1)(e).
26 Section 104(1)(g).
27 R v Smith, above n 5, at [44]; citing Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 at [69]-[70] .
28 R v Knox, above n 14, at [66].
29 (14 August 2001) 594 NZPD 10910–10911.
[53] I also find that the submission that Chevana did not ask you to end her life on the day does not adequately capture the whole picture. Although there was no clear request as one might expect in a paradigm mercy killing, you and your family members have explained that Chevana regularly expressed a wish not to be alive, and before her health deteriorated she would often talk about her condition, saying that she wanted to “die before it got too bad”. Chevana had attempted suicide previously, and her carers confirmed they witnessed Chevana attempt to harm herself and one apparent suicide attempt in the bath.
[54] Mr Phelps also submitted that in one respect your case is more compelling than Knox – Chevana was terminally ill, there was no way she was going to recover from her condition, and her quality of life was consistently deteriorating. Chevana was suffering daily, for example believing she was being raped every time you tried to change her nappy. Mr Phelps also highlighted the exceptional nature of Chevana’s disease, noting its rarity and the healthcare system’s apparent inability to deal with it.
[55] With all of that in mind, I find the circumstances of the offence combined with your personal circumstances mean that a sentence of life imprisonment would be manifestly unjust.
Finite sentence
[56] That means I must now calculate a finite sentence by adopting a two-step approach: first, I set a starting point based on the offence; and second, I apply uplifts and discounts to reflect your personal mitigating circumstances.
Starting point
[57] I again rely on the case of Knox in setting the starting point for your offending. There Williams J adopted a starting point of six years’ imprisonment.30 Justice Williams considered a sentence of imprisonment was required to mark the fact a vulnerable life was taken, and to recognise the value of human life.31 As I have already discussed, there are some features of your case that are different from Knox:
30 R v Knox, above n 14, at [78].
31 At [70].
on the one hand, Ms Knox was the victim’s sole carer for 20 years, whereas Chevana spent long periods of time in different care facilities over the last 13 years and had been in your direct care for only two months prior to her death; but on the other hand, Chevana was in the terminal phase of her illness.
[58]It is an impossible task to calibrate distress and suffering – Chevana’s or yours
– and to compare it with others, but that is in effect what the Court is asked to do. Balancing all the factors I have discussed, I consider a starting point of eight years’ imprisonment is appropriate.
[59]I turn now to your personal mitigating factors.
Personal mitigating factors
[60] There is no suggestion that you have any personal aggravating factors that warrant an increase or uplift, but there are some personal mitigating factors in your case that deserve a discount from that starting point.
[61] First, you have taken full responsibility for your offending from the beginning, and you entered an early guilty plea.32
[62] Second, there are your more general personal mitigating factors: Ms Turner’s s 27 report details your difficult background, despite which you appear to have exhibited a very strong character up until now;33 as I have already said, I consider you pose little to no risk of reoffending, and you appear to have very good rehabilitation prospects.
[63] I consider all of these factors warrant a total discount of one year, six months (approximately 18 per cent).
End sentence
[64]That results in an end sentence of six years, six months’ imprisonment.
32 Sentencing Act, s 9(2)(b); Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].
33 Section 9(2)(g).
Minimum period of imprisonment
[65] Finally, I come to the issue of whether or not to impose a minimum period of imprisonment (MPI). Ordinarily a defendant who is sentenced to prison for more than two years can apply for parole after they have served one third of that sentence. But s 86 of the Sentencing Act gives the Court power to order a defendant to serve a longer minimum period of imprisonment where the possibility of parole after the normal period would mean that the sentencing principles of deterrence, denunciation, accountability, or protection of the community from the offender would not be adequately met.
[66] Mr Phelps submitted that, as in Knox,34 an MPI is not necessary, and the principles and purposes of sentencing can be achieved by the imposition of a sentence of imprisonment. The Crown did not make a submission on this specific point.
[67] Given that you have accepted responsibility for your offending, and there is no need to protect the community from you, I do not consider an MPI necessary. While I acknowledge the principles of deterrence and denunciation are particularly important following the taking of a life, I consider the unique circumstances of your case mean those principles are adequately met by a sentence of imprisonment.
[68] In closing I want to say to you Ms Lawrence that, although the law requires that you be punished for Chevana’s death, I know you have already endured a great deal, both before and after Chevana died. I want to acknowledge your pain and your strength in dealing with that.
Result
[69] Ms Lawrence, on one charge of murder, I sentence you to six years and six months’ imprisonment.
Gwyn J
34 R v Knox, above n 14.
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