R v Morton
[2021] NZHC 1096
•14 May 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2020-019-5810
[2021] NZHC 1096
THE QUEEN v
ROY ERNEST MORTON
Hearing: 14 May 2021 Appearances:
K R L Guthrie for Crown
R J Laybourn & R M Laybourn for Defendant
Sentence:
14 May 2021
SENTENCE OF PAUL DAVISON J
Solicitors:
Crown Solicitor, Hamilton
Rhianna Laybourn Law, Hamilton
R v MORTON [2021] NZHC 1096 [14 May 2021]
Introduction
[1] Roy Ernest Morton, having previously entered a plea of guilty1 to a charge alleging that on 12 October 2020 you attempted to murder your wife Mrs Marion Morton, you appear before the Court today to be sentenced for your offending.2
Purposes and principles of sentencing
[2] The purposes of sentencing you Mr Morton are to hold you accountable for the harm done to your wife as the victim of your offending and to provide for her interests as the victim of your offending, as well as holding you accountable for the harm your offending has caused to the community. Another purpose of the sentence I shall impose is to promote in you a sense of responsibility for and an acknowledgment of the harm your offending has caused and to denounce your conduct, and to deter you and any other persons from committing the same or a similar offence. The sentence is also intended to protect the community and particularly your wife from the risk of further offending while also being a sentence that will assist you in your rehabilitation during and following your sentence.3
[3] In determining the appropriate sentence to be imposed on you I must also apply the principles of sentencing set out in s 8 of the Sentencing Act 2002. These include taking the gravity of your offending and your degree of culpability as regards your offending into account, as well as the effect of your offending on the victim of your offending. I must also have regard to the seriousness of the type of offence you committed compared to other types of offences as indicated by their prescribed maximum penalties. The law also requires that unless circumstances relating to the offender make it inappropriate to do so, the Court must impose a sentence near to the maximum prescribed for the offence where the offending is near to the most serious of cases for which that penalty is prescribed. I must take into account the general desirability of imposing a sentence that reflects appropriate sentencing levels consistent with other means of dealing with offenders committing similar offences in similar circumstances. I must also take into account any particular circumstances
1 Plea entered on 18 March 2021, conviction entered and first strike warning given.
2 Crimes Act 1961, s 173; maximum penalty 14 years’ imprisonment.
3 Sentencing Act 2002, s 7.
regarding you that would mean that a sentence imposed on you would be disproportionately severe in your case. I must also take into account your personal circumstances and impose a sentence that is the least restrictive outcome that is appropriate in the circumstances.
The offending
[4] The Crown summary of facts which you have accepted as being accurate sets out the circumstances of your offending.
[5] Mr Morton you are 82 years old and your wife 81 years old. You and Mrs Morton have been married for over 57 years and until recently you and your wife lived together at a retirement village in Matamata. On 15 August last year, Mrs Morton suffered a severe stroke that caused her to be hospitalised in Waikato hospital for approximately eight weeks. As a result of the stroke, she has significant physical, mental and cognitive disabilities, and is unable to move around unassisted. Her ability to communicate has also been significantly affected.
[6] On 8 October 2020, Mrs Morton was discharged from Waikato hospital and moved into an aged care facility in Matamata. The aged care facility is a short walking distance away from your own retirement village unit where you and your wife had been living together at the time she suffered the stroke. The Crown summary of facts says that you were not satisfied with the care Mrs Morton was receiving at the aged care facility, and during the evening of her first day there, you removed her from the facility and took her back to your unit at the retirement village. This resulted in the Police being called and following your discussion with them, an arrangement was made for your wife to remain with you overnight, and for you to return her to the aged care facility the next morning.
[7] However the following day, 9 October 2020, before returning Mrs Morton to the care facility you unsuccessfully attempted to kill her and yourself by means of carbon monoxide poisoning. A recording was subsequently located by Police on an i-Pad belonging to you in which you can be heard telling Mrs Morton that you and she will both die of carbon monoxide poisoning and that what you were doing was what you said was a “murder-suicide”. During the early part of the recording a car engine
can be heard running in the background. However later that day you did take Mrs Morton back to the aged care facility as had been arranged and whatever you were doing earlier clearly was not successful, as you had intended it to be.
[8] Over the course of the next few days, you visited Mrs Morton at the aged care facility and you became preoccupied by your concerns for her situation which you found deeply distressing. On the afternoon of 12 October 2020 you visited your wife and asked staff at the facility to put her into a wheelchair so that you could take her for a walk around the grounds. They complied with your request. However, instead of taking her for a walk around the grounds of the care facility, you took Mrs Morton back to your retirement village unit and put her into your car. You had previously placed in your car, several coils of ventilation tubing, rolls of duct tape and a knife, which you had obtained and intended to use to end both your wife’s life, and your own life.
[9] Before departing your address you wrote an email which you addressed to a number of your closest friends and to Mrs Morton’s sister who resides in the United Kingdom. In this email you described your frustration with the situation that you and Mrs Morton had found yourselves in as a result of her medical condition, and you indicated that you intended to take your own lives. Having sent the email you took your wife with you in your car and drove to an unidentified location where you stopped and parked the car. You then attached a length of the ventilation tubing to the car exhaust pipe and positioned the other end through a partly open car window in order to pump the exhaust gases into the car while the engine was left running for the purpose of killing both Mrs Morton and yourself.
[10] Fortunately, a passing motorist saw what you were doing and stopped nearby. You then hastily removed the tubing from the exhaust, put it back inside your car and drove away. The motorist attempted to follow you and contacted the Police. You drove to an area near Lake Karapiro and once again parked the car in a location where soon after your arrival there, you were located by the Police.
[11] When the Police officers approached your car you got out brandishing a knife threatening to use it to kill yourself. You were taken into custody by the Police and
both you and Mrs Morton received medical attention. Again fortunately, Mrs Morton was not physically harmed as a result of your actions.
[12] When initially spoken to by Police you admitted the facts as I have outlined them and said that you and Mrs Morton had agreed to a joint suicide pact, adding that you should have just driven into the lake when the Police arrived. When you were interviewed later, you told the Police that your wife had indicated to you by using language that you understood, that she wanted to end her life. Police also located another i-Pad recording dated 12 October 2020 on which you were recorded as saying that what was about to happen was all Mrs Morton’s idea and on which recording you also said goodbye to everyone.
[13] Several days later, on 20 October 2020, Mrs Morton was assessed by medical staff at Waikato Hospital as lacking the capacity to understand and foresee consequences relating to her personal care, finances and welfare including her medical care. The assessment found that Mrs Morton had difficulties retaining and understanding information, had significant difficulties communicating, and was unable to display signs of reasoning. She was assessed as being significantly vulnerable to exploitation.
Defendant’s personal circumstances
[14] The pre-sentence report prepared by the Department of Corrections sets out details of your personal background. Your counsel also arranged for you to be assessed and a report prepared by Dr Dean who is a psychiatrist. In his report, which has also been provided to the Court, he sets out details of your background, your medical condition and his assessment of your mental state. I note that you have some previous convictions for minor offences committed several decades ago, but they are not at all relevant to the sentencing today.
[15] As I said earlier, you are 82 years old. You and Mrs Morton have been married now for 57 years. You and your wife came to New Zealand from England 54 years ago in 1967. You spent most of your life in New Zealand living in Auckland before moving to Matamata around two years ago to take up residence in a unit at a retirement
village in Matamata. You and your wife have no children and you have no other family living in New Zealand.
[16] You have a medical history of suffering from stage four metastatic cancer. Your cancer treatment ended a little over a year ago, and you have told the probation officer who prepared the pre-sentence report that you have recently been advised that the tumours have started to grow again.
[17] You say that you are nevertheless generally healthy and that you exercise and walk daily. You otherwise spend most of your time at home or involved with organised musical activities at the retirement village.
[18] You clearly have a deep emotional connection with your wife. You told the author of the pre-sentence report, that following your wife suffering the stroke your life began to “fall to pieces”, and that during the period of your wife’s hospitalisation and subsequent discharge from hospital and move to the aged-care facility, you suffered immense distress and became sleep deprived.
[19] You told the probation officer that despite her disability as a result of her stroke, you believe that your wife nevertheless communicated with you in a non-verbal way by means of gestures. You say that at one point your wife used language from which you understood her to be saying that she wished to end her life. You explained to the probation officer that you could not bear to see your wife suffer and that you wanted to fulfil her wish to end her suffering. You said that you were unable to bear the thought of living without her and that you therefore made a decision to end your own life and hers by entering into what you believed to be a joint suicide pact.
[20] Mr Morton, having regard to the information and report prepared by the hospital staff, the Court does not accept and cannot accept your explanation that there was communication, or meaningful communication, from Mrs Morton that provided any reasonable or justifiable basis for your belief that there was a joint suicide pact that you should be acting pursuant to.
[21] You say that although you accept that your actions involved a level of planning and premeditation you had become caught up in the situation that you were in and that had affected your ability to rationally think of any other way out of it.
[22] You have expressed your remorse for your actions and offending, and you acknowledge the impact that your offending has had on your wife. You now accept full responsibility for your actions and say that you are motivated to comply with the terms of the sentence imposed and its requirements and conditions. On reflection, you now say that you take comfort from knowing that your wife is receiving a high standard of care at the facility where she is now residing. You have been visiting her there frequently under supervision at all times. And while you have a wish to see your wife return to live with you at your home, you realistically recognise that this is not presently possible and indeed may never be possible. You say that you no longer have a desire to end your own life and you now strongly believe that suicide is not an option for you or your wife.
Victim impact statement
[23] The Crown has applied for the Court to treat your wife’s sister as a victim.4 In her victim impact statement your wife’s sister describes her own distress and that of her family upon receiving your email advising of your intention to end her sister’s life. She says that she was deeply shocked by your actions in attempting to end both of your lives. She further says that you have not apologised to her or her family or appeared at all remorseful for the distress you have caused her and her family. She doubts that you and her sister in fact had a suicide pact as you have claimed, because she says her sister always deeply valued her life, regardless of any “deficiencies”.
[24] Your wife’s sister explains that as she lives in the United Kingdom, travel restrictions have prevented her from coming to New Zealand to see her sister as she would otherwise have done immediately.
4 Victims’ Rights Act 2002, ss 17AA(1)(i)(B) and 20(1).
Submissions
[25] In its written submissions the Crown submits that the appropriate starting point for this offending would be in the range of 18 months’ imprisonment. The Crown further submits however that the context of the offending is also relevant, and that a rehabilitative sentence assisting you to come to terms with the changed situation that has developed since the offending would also be a relevant objective of sentencing to be taken into account.
[26] The Crown in its written submissions says that there are two aggravating factors of the offending, namely premeditation and the vulnerability of the victim. The Crown submits that your actions of purchasing ventilation tubing and duct tape, removing Mrs Morton from the aged care facility and then emailing friends and family a “farewell” email, demonstrates a high level of premeditation on your part. The Crown submits that Mrs Morton was a particularly vulnerable victim due to her cognitive impairments as a result of the stroke she had suffered.
[27] The Crown refers to a number of cases that they submit may assist the Court in setting an appropriate starting point.
(a)In R v Martin,5 the defendant, who was a registered nurse, was found guilty of attempting to murder her mother by administration of morphine. The defendant’s mother was terminally ill and suffering from bowel cancer. During a conversation a week or so prior to her mother’s death the defendant promised her that should her condition deteriorate to the point where she had no quality of life she would help her mother end her life. The defendant subsequently ignored offers of palliative care for her mother, and was found to have acted in breach of trust by administering morphine that she had been given to control her mother’s pain over a period of days, in one single dose. The Court of Appeal upheld a sentence of 15 months’ imprisonment coupled with leave to apply for home detention.
5 R v Martin CA199/04, 14 February 2005.
(b)In R v Crutchley,6 the defendant was found guilty of attempted murder of his mother. Justice Keane found that the defendant had acted in a state of panic and on impulse to administer a full 24 hour dose of morphine to his mother who was in a palliative care rest home dying of cancer, and who had been in extreme distress and pain over a period of several days. The defendant’s actions were not premeditated and he himself was highly vulnerable, having been without sleep for a period and having been unsuccessful in arranging to have his mother’s pain relief increased, and having failed to achieve that, he then acted to do so himself by administering the full dose of morphine which was fatal. Justice Keane described it as being a truly exceptional case, noting that the defendant was a responsible son and contributor to the community. He was someone very closely bonded to both his parents. Together with his mother he had previously nursed his father when he had cancer and had died of it some three years before his mother’s death. As Mr Crutchley was a self-employed plumber, Keane J adopted a starting point of four months’ home detention but imposed an end sentence of six months’ community detention and 150 hours of community work, rather than home detention. The Judge found that a sentence of home detention would have a disproportionate impact on Mr Crutchley as it would render him unable to work and support his family with the result that the sentence would have an adverse effect upon his family.
(c)In R v Faithfull,7 the defendant was charged with the attempted murder of his wife who had undergone chemotherapy for pancreatic cancer, and who had a poor prognosis and had been suffering considerable pain. Although terminally ill, the defendant’s wife was not near the end of her life. The defendant, who had been drinking and was under stress as a result of his wife’s deteriorating condition, decided to put her out of her misery and put a pillow over her face while she slept. However when he did this his wife awoke and began struggling. The defendant then stopped what he was doing and shortly afterwards telephoned the
6 R v Crutchley HC Hamilton CRI-2007-069-83, 9 July 2008.
7 R v Faithfull HC Auckland CRI 2007-044-007451, 14 March 2008.
Police and told them what had happened. Although the defendant’s wife initially wanted him charged and punished, they reconciled some two months after these events. Justice Venning adopted a starting point of two years, three months’ imprisonment and applied a discount of 12 months to adjust for mitigating factors (previous good character; remorse; and guilty plea) and imposed an end sentence of 12 months’ home detention.
(d)In R v Law,8 the defendant was aged 77. He pleaded guilty to murdering his wife who was aged 73. They had been married for over 50 years. Some eight years before her death the defendant’s wife had been diagnosed with dementia. The Judge accepted that the defendant and his wife had years beforehand made a pact that if this happened, they would assist each other to die. Over the years following her initial diagnosis her condition progressively deteriorated. Two weeks prior to her death, the defendant made a serious attempt to end both of their lives, but he failed. He then began to plan how to achieve his purpose and to summon the courage to do so. On the night of her death, the defendant gave his wife a quantity of sleeping pills before striking her head with a mallet and suffocating her with a pillow. After determining that she was dead, the defendant made a determined effort to kill himself by slashing his own wrists. Although he lost a lot of blood, his attempt was unsuccessful. The following morning he telephoned the police to tell them what had happened. Justice Randerson accepted that the defendant in that case genuinely believed that he was carrying out his wife’s wishes and that he had acted out of compassion rather than malice. A sentence of 18 months’ imprisonment was imposed with leave granted to the defendant to apply for home detention.
8 R v Law HC Hamilton T 021094, 19 August 2002.
[28] Mr Laybourn, on your behalf Mr Morton, submits that the Court can impose a non-custodial sentence in your case. He refers to R v Crutchley and submits that a similar starting point should be adopted in your case as was adopted there.9
[29] Mr Laybourn also refers to R v Davison.10 In that case, Mr Davison pleaded guilty to one charge of counselling and procuring his mother’s suicide.11 Justice French adopted a starting point of 21 to 24 months’ imprisonment and considered that it was offending at the lower end of the scale as Mr Davison was acting out of love and compassion for his mother, and not out of any desire for personal gain. While his mother was vulnerable in one sense as she was in the last days of her life due to cancer, she was also strong willed and had put some pressure on the defendant to do as she had requested. Justice French gave a 20 per cent discount for previous good character and a 25 per cent discount for Mr Davison’s early guilty plea. The Judge then noted that, as Mr Davison lived and worked in South Africa where his family were living, the impact of a home detention sentence would be greater for him than for a New Zealand resident. The Judge accordingly imposed a final sentence of imprisonment of five months’ home detention.
Purposes and principles of sentencing
[30] There is no guideline authority for attempted murder cases and the sentencing of these cases. In cases involving assisted suicide or mercy killings, the courts have consistently held that the starting principle is the recognition of the sanctity of life.12 This reflects s 8 of the New Zealand Bill of Rights Act 1990 which provides: “No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.”
[31] As I have said the Court is required to take into account the principles and purposes of sentencing when dealing with an offender appearing before the Court.13 Denunciation and deterrence are the most prominent sentencing purposes that are
9 R v Crutchley, above n 6; starting point of four months home detention but imposed an end sentence of six months community detention and 150 hours community work.
10 R v Davison [2011] NZHC 1677.
11 Crimes Act 1961, s 179(a); maximum penalty 14 years’ imprisonment.
12 Martin, above n 5, at [165]; Faithfull, above n 7, at [8]; Crutchley, above n 6, at [56]
13 Sentencing Act, ss 7 and 8.
relevant here.14 Other relevant principles, some which of which I have referred to, include the need to take into account the gravity of the offending in the particular case, and the degree of your culpability,15 together with the general desirability of consistency in sentencing levels for and in relation to similar offending.16
Starting point
[32] I turn now to determining the appropriate starting point for your offending Mr Morton.
[33] I shall begin by following the Court of Appeal’s direction in Moses v R17 to determine an adjusted starting point for sentencing.18 I will arrive at this adjusted starting point by considering the gravity of the offending with reference to the aggravating and mitigating features of the offence, and analogous cases. Attempted murder carries a maximum sentence of 14 years’ imprisonment.19 In the absence of a guideline judgment for the charge of attempted murder, the Court of Appeal has set starting points for attempted murders with reference to the bands of sentencing outlined in R v Taueki,20 for conduct with intention to cause grievous bodily harm, adjusted to recognise the more serious, specific intention to kill present in an attempted murder situation.21 The Crown submits that R v Taueki, can provide a useful reference for determining a starting point in attempted murder cases, adjusted to recognise a more specific intention to kill.22 In my view however, these bands are not directly applicable to cases such as the present. Attempted murder in the context of an alleged “murder-suicide” situation is distinctly different from the type of violence with which Taueki is primarily concerned. Instead, it is more instructive, in my view, to consider the aggravating and mitigating factors of the present offending and the sentences imposed in comparable cases.
14 Sentencing Act 2002, ss 7(e) and 7(f).
15 Sentencing Act, s 8(a).
16 Sentencing Act, s 8(e).
17 Moses v R [2020] NZCA 296 at [46].
18 The Court of Appeal used the term adjusted starting point “to signify that it incorporates all aggravating and mitigating features of the offending: Moses v R [2020] NZCA 296 at [6].
19 Crimes Act, s 173.
20 R v Taueki [2005] 3 NZLR 372 (CA).
21 Ali v R [2019] NZCA 35; Marsters v R [2011] NZCA 505.
22 Ali v R, above n 21.
[34] There are two significantly aggravating factors to your offending Mr Morton that inform the adoption of an appropriate starting point; namely your premeditation and Mrs Morton’s vulnerability.23 Your actions were carefully planned and obviously premeditated. You purchased ventilation tubing and duct tape with the intention of using it to kill your wife and yourself by means of carbon monoxide poisoning. You deceived the aged care facility staff by saying that you wished to take your wife for a walk, and then explained your intention to kill your wife and yourself in the email you sent to friends and family. This is a similar level of premeditation to that present in the cases of R v Law24 and R v Karnon.25 In both those cases the defendants premeditated the murder of their wives in the context of their advanced ages, their severely compromised quality of life and in accordance with, in those cases, an assisted suicide pact. The present offending can be distinguished from that of Crutchley¸26 referred to by both parties, where Keane J found that Mr Crutchley acted in a state of panic and impulse to over-administer morphine to his mother in what were obviously her final days, when his mother was experiencing severe pain and his attempts to secure her additional pain relief were unsuccessful. Mr Crutchley’s actions were not planned or significantly premeditated as they occurred while his mother was distressed and he himself was vulnerable.
[35] The other aggravating factor of your offending Mr Morton is, as I have said, the particular vulnerability of your wife. The stroke she suffered left her with limited ability to communicate or walk. A medical report noted that she is significantly vulnerable to exploitation. This feature is inherent to offending of this type when it involves the murder or attempted murder of an individual near the end of their life, or thought to be near the end of their life, or with a significantly reduced quality of life. The inability of Mrs Morton to communicate made her especially vulnerable. The present case can be distinguished from cases such as R v Davison,27 where while the defendant’s mother was in the final days of her life due to cancer, she nevertheless remained strong-willed and communicative, and French J also found that she had put
23 Sentencing Act, ss 9(i) and (g).
24 R v Law, above n 8.
25 R v Karnon HC Auckland, S14/99, 29 April 1999, Paterson J.
26 R v Crutchley, above n 6.
27 R v Davison, above n 10.
some pressure on her son to help her commit suicide. There was no suggestion of Mrs Morton having done anything of that kind in the present case.
[36] Neither party have referred in detail to R v Karnon,28 but it is the most factually similar to the present case. However a significant difference between that case and your case Mr Morton is that Mr Karnon was charged with manslaughter, and not attempted murder, as you have been and which you have pleaded guilty to. In the Karnon case a husband and wife had agreed to die together if one of them became very sick. The wife had to move into a rest home and made comments to staff indicating that she wanted to end her life. Mr Karnon gave his wife sleeping tablets and then tried to kill her by tying a plastic bag around her head. Mr Karnon was found in the next room semi-conscious with a yellow plastic bag tied around his forehead. Justice Paterson observed that although manslaughter would almost always attract a sentence of imprisonment, by reason of the existence of special circumstances pertaining to the defendant and his offending, a custodial sentence was not justified, and there was no need for a deterrent sentence to be imposed. Those special circumstances included the deceased Mrs Karnon’s ill-health and suffering, the defendant’s close relationship with her over a long period, and the defendant being motivated by his love and compassion for his wife; as well as the encouragement given by his wife to assist her to die; and his plea of guilty, together with his age (he was in his eighties), previous good character, and full co-operation with the Police. Justice Paterson accordingly imposed an end sentence of two years’ supervision with a condition that the defendant stay at the rest home. While that sentencing did not involve determining a starting point and adjusting that by reference to the aggravating and mitigating factors,29 the Judge’s explanation of the final sentence shows that offending that would ordinarily have attracted a sentence of imprisonment, was reduced to one of supervision by reason of those mitigating circumstances relating to the offending and the offender.
[37] As I have said, Mrs Morton was clearly in an extremely vulnerable situation by reason of her medical, mental and physical condition. In view of her condition she was entirely dependent on others for her welfare. The duration and extent of your
28 R v Karnon, above n 25.
29 Moses v R [2020] NZCA 296 at [46].
premeditation, planning, and preparations over an extended period is evident by your actions of obtaining the tubing and duct tape to connect the vehicle exhaust of your car, and by your action of using the pretext of taking your wife for a walk and then, once taking her back to your place, you placed her in your car, sent the emails and took her where you could use the equipment that you had assembled to attempt to asphyxiate both her and yourself. My assessment of the gravity of the offending is therefore informed by your actions as being clearly motivated and by your desire to take both her life and your life and also clearly motivated by your genuine compassion for your wife and your wish to bring an end to her profound diminished quality of life. The fact that you also intended to take your own life speaks to the depth of your love for your wife to whom you have been married for nearly 60 years, and that without her you had no desire to keep going on your own, notwithstanding that at that time you had no immediate threat to your own health.
[38] Our criminal law, and relevantly here the serious offence of attempted murder, reflects the principle that all human life is sacred and that everyone, including those who by reason of their age or ill-health are nearing the end of their lives and who are thereby especially vulnerable, are nevertheless still entitled to the full protection afforded by the law.
[39] Although there are some differences, I consider that there are features of your offending which are closely comparable to the circumstances of the offending in R v Law. In both cases the defendants had been married to their wives for 50 or more years. In both cases the defendants were motivated by genuine compassion for their wives whose quality of life had become severely diminished by their illness. In both cases the defendants had attempted to carry out a murder-suicide on an earlier occasion and had been unsuccessful. While the offending in Law involved the defendant using a mallet to strike his wife to the head and a pillow to suffocate her after first administering sleeping tablets to her, which are obviously not features of your offending Mr Morton, in both cases the defendants were involved in making genuine attempts to end their own lives.
[40] In my view your offending is significantly more serious and culpable than the offending in Crutchley where a starting point of four months’ imprisonment was
adopted, and less culpable than the offending in Faithfull where Venning J adopted a starting point of two years and three months’ imprisonment and where the defendant’s wife although terminally ill was not nearing the end of her life, and where the attempted murder took place in the context of the defendant drinking alcohol and deciding to end his wife’s life and put her out of her misery. I also consider your offending to be less culpable than the offending in R v Davison, where French J adopted a starting point of between 21 - 24 months’ imprisonment, and in which the defendant pleaded guilty to a charge of counselling and procuring his mother’s suicide. In that case although the defendant was clearly motivated by compassion for his mother who was in her last days suffering from terminal cancer, there was not the murder-suicide element of the defendant also endeavouring to take his own life.
[41] Having regard to those comparative cases, and where I find the culpability of your case to sit in relation to those other cases, I consider that the appropriate starting point to be adopted in your case Mr Morton is 18 months’ imprisonment.
Features personal to the offender
[42] I will now adjust the starting point by reference to any aggravating and mitigating features personal to you Mr Morton that may warrant uplifting or applying discounts to reduce that starting point.
[43]There are several personal mitigating factors that are to be taken into account.
Guilty plea
[44] In recognition of Mr Morton’s guilty plea at what I accept was an early stage in the prosecution process it is appropriate that he receive a full 25 per cent discount from the sentence starting point.
Age and good character
[45] At 82 years of age Mr Morton has some prior convictions for unrelated minor offending. His previous good character is evident from his record and it warrants recognition by way of a significant discount in my view. I also note from the pre-sentence report and Dr Dean’s report that Mr Morton has in recent times
undergone chemotherapy treatment for cancer and that cancer appears to be active again. His treatment ended some 12 months or more ago, and recent testing has indicated that the tumours are now growing in size, meaning that his health and prognosis must now be regarded as uncertain.
[46] Dr Dean in his report notes that as a result of her stroke Mr Morton says that his wife is no longer the same person that he has known and loved during their long marriage, and that he is grieving over his wife’s condition, and anxious about the effects of what he did upon his wife’s sense of dignity and the distress of what he did and its effect upon her. Mr Morton is described by Dr Dean to be suffering from low mood, tearfulness, anxiety and emotional distress. Such emotion and distress were also present and observed by the probation officer during the defendant’s interviews for the purpose of the preparation of the pre-sentence report. I note too that Dr Dean diagnosed Mr Morton to be suffering from an adjustment disorder which leads to fragility of mood, insomnia, anxiety and preoccupation with his present situation and distress.
[47] Taking Mr Morton’s age, medical health and mental state and distress as described by Dr Dean into account, I consider that a discount of 20 per cent from the starting point is appropriate to recognise those factors.
[48] Mr Laybourn submits that the Court should also allow a discount to recognise Mr Morton’s genuine remorse for the impact of his offending on his wife, and to recognise that he has been assessed as presenting a low risk of causing harm to others in the community. I accept that the defendant’s remorse is genuine. He has visited his wife regularly since the offending and has demonstrated the close and enduring emotional connection he has with her, despite her condition and inability to communicate. However, the defendant’s remorse has to some extent already been recognised by the discount allowed for his guilty plea, and I note that he has not expressed his remorse for the harm and suffering caused by his actions and the email sent to his wife’s sister in the United Kingdom, who describes him as not having apologised or expressed his remorse to her at all. Having regard to those considerations, I consider that a further five per cent discount should be allowed to
recognise the mitigating factor of what I find to be his genuine remorse as directed principally towards his wife.
[49] Those discounts, totalling 50 per cent, deducted from the starting point of 18 months produce a sentence of nine months’ imprisonment, and accordingly enable the Court to consider a non-custodial sentence as an alternative to imprisonment.
[50] I note that a sentence of community detention combined with a period of supervision is recommended by the author of the pre-sentence report. However I also note that Mr Laybourn acknowledges in his written submissions that having accepted a sentence of home detention would be imposed, a Community Detention coupled with Supervision sentence is not now pursued on the defendant’s behalf. In any event, in my view such a sentence would not be sufficient to meet the sentencing objective of holding Mr Morton accountable for his offending having regard to the gravity of the offending and the purposeful planning that accompanied his attempt to end his wife’s life, notwithstanding that it was motivated by compassion. I am also minded of the need for consistency in sentencing by reference to the cases I have referred to and, as I have said, this case is clearly distinguishable from that of R v Crutchley.30 As I have also already said, the offending in that case arose in circumstances where the defendant was found to have acted in panic and in response to a situation which developed in front of him and not over a period of days or longer, as was the case here for you Mr Morton, and the deliberate and careful steps you took to prepare and plan for the killing of your wife and yourself.
[51] While the sanctity of human life is such a fundamental principle that it must normally be vindicated by the imposition of a sentence of imprisonment, I consider that a sentence of home detention will meet the objectives and purposes of sentencing in this case.
Result
[52] Mr Morton would you please stand. On the charge of attempted murder in respect of which you have entered a plea of guilty you are sentenced to four and a half
30 At [86].
months’ home detention to be served at the address referred to in the pre-sentence report which has been assessed and is considered suitable for the purpose of an electronically monitored sentence of home detention.
[53] The sentence of home detention shall be subject to the five Special Conditions set out and detailed as proposed special conditions in the pre-sentence report.
[54] In addition to the standard and those special conditions applicable to a sentence of home detention,31 I also impose a special condition pursuant to s 80D(4)(e) which will restrict you from visiting your wife in the care facility where she is residing unless given prior permission to do so by the Department of Corrections officer responsible for the oversight of your home detention sentence and unless you are accompanied at all times during visits to your wife by an approved supervisor who is required to remain with you throughout the entire period of any visit you make to see your wife. I consider that such a condition is necessary to reduce the risk of any further offending by you Mr Morton.
[55]You may stand down.
Paul Davison J
31 Sentencing Act 2000, s 80C.
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