R v Mott - [2012] NZHC 2366

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-005298 [2012] NZHC 2366

THE QUEEN

v

EVANS JAMES MOTT

Appearances: A R Longdill for Crown
R M Mansfield and H C Stuart for Prisoner

Judgment: 13 September 2012

SENTENCING NOTES OF COURTNEY J

Solicitors: Meredith Connell, P O Box 2213, Auckland 1140
Fax: (09) 336-7629 – A Longdill

Counsel: R Mansfield, P O Box 2674 Shortland Street, Auckland 1140
Fax: (09) 368-4473

R V MOTT HC AK CRI-2012-004-005298 [13 September 2012]

[1] Evans James Mott, you appear for sentence today having pleaded guilty on the charge of assisting your wife, Rosemary Mott, to commit suicide.[1] Rosemary, or Rosie, as she was known and as your counsel has referred to her today in submissions and I too will refer to her like that, if that is alright with you. Rosie was
55 years old when she died, and afflicted by a most dreadful disease, primary progressive multiple sclerosis, or PPMS. She was in pain, and losing the ability to walk and take care of herself. She hated the indignity of her condition and made the decision to end her life. You provided a measure of assistance in that.

[1] Section 179(b) Crimes Act 1961.

[2] You seek to have me discharge you without conviction.[2] The Crown opposes that. However, it accepts that the circumstances of the offending fall at the lower end of the spectrum in terms of your culpability and justify a non-custodial sentence.

[2] Section 106 Sentencing Act 2002.

[3] One of the objectives in sentencing in a case such as this includes an element of deterrence. This is not deterrence in terms of the individual because it is accepted in this case that there is no need for that, but the general deterrence that Parliament requires to ensure that others fully appreciate the effect of the law. There are a number of principles that a sentencing judge has to take into account in sentencing. Of particular relevance in this case is the gravity of the offence, the need for consistency in sentencing and the need to impose the least restrictive outcome in the circumstances. But before I can consider what the appropriate outcome, having regard to these principles, I need to record the events that led up to Rosie’s death.

The offending

[4] Rosie had been suffering from PPMS for about four years before her death. This condition is an aggressive form of multiple sclerosis. Your lawyer’s submissions have detailed the nature of the disease. Rosie’s symptoms included tremors that made it increasingly difficult for her to feed or care for herself, difficulty walking, incontinence, and pain. She resolved to end her life. I am satisfied that she made this decision sometime in early to mid-2010. Rosie’s niece has given an
affidavit in which she describes conversations with Rosie about euthanasia in July

2010 with Rosie making it clear then that she was determined to end her life. Rosie contacted an organisation that advocates for the right to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mott

Details

AGLC: R v Mott [2012] NZHC 2366
Case: [2012] NZHC 2366
Decision Date: 13 September 2012

CaseChat Overview and Summary

Evans James Mott pleaded guilty to assisting his wife, Rosie, to commit suicide. Rosie had been suffering from primary progressive multiple sclerosis, and she decided to end her life. Mott provided some assistance, including helping to set up equipment Rosie would use to end her life. The Crown did not seek a custodial sentence, but opposed a discharge without conviction. The court considered the principles of sentencing, including the gravity of the offence, the need for consistency in sentencing, and the need to impose the least restrictive outcome in the circumstances. The court concluded that the consequences of a conviction would be out of all proportion to the gravity of the offence in this case, given the mitigating factors, and granted a discharge without conviction.

The court accepted that Rosie's decision to end her life was her own, and that Mott's assistance was limited. The court acknowledged that the maximum penalty for the offence was 14 years imprisonment, reflecting the significance that Parliament places on the sanctity of life. However, the court also considered the consequences of a conviction for Mott, including the effect on his ability to work in the United States. The court concluded that, given Mott's age, work history, and the fact that he had no prior convictions, the consequences of a conviction would be out of all proportion to the gravity of the offence in this case. The court granted a discharge without conviction, taking into account all of the matters discussed and the factors identified in the Sentencing Act and the wider interests of the community.

Orders