R v Salter
[2024] NZHC 381
•29 February 2024
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2023-070-3587
[2024] NZHC 381
THE KING v
JOHN SALTER
Hearing: 29 February 2024 Appearances:
A J Pollett and H J Speight for Crown T F Rickard-Simms for Mr Salter
Judgment:
29 February 2024
SENTENCING OF COOKE J
[1] Mr Salter you appear for sentence today, having pleaded guilty to murdering your wife Jean.1
[2]In order to decide what sentence is appropriate I will address three matters:
(a)First, I will describe the facts of your offending. I acknowledge this may be distressing for you, and possibly others, but sentencing is a public process, so I have to talk about the detail of what happened.
(b)Second, I will outline your personal circumstances.
1 Crimes Act 1961, s 172; maximum penalty life imprisonment.
R v SALTER [2024] NZHC 381 [29 February 2024]
(c)Third, I will consider the appropriate sentence, applying the relevant law to your case.
The offending
[3] Mr Salter, you pleaded guilty to murdering your wife of 60 years, Ms Jean Salter on 8 October 2023. The facts of that offending are set out in the summary of facts which forms the agreed basis for sentencing.
[4] You had resided with Jean in a retirement village for 18 years. Jean had been suffering from mild Alzheimer’s for approximately one year before her death. You undertook a number of household duties that Jean had otherwise done over the course of your 60 year marriage when the Alzheimer’s developed.
[5] On Wednesday 4 October 2023 you were approached at your apartment by a member of the retirement village about the fact of Jean wandering through the apartment block in the morning due to her Alzheimer’s. There was a suggestion that she be moved to an Alzheimer’s facility at another location which had become available. This caused you to become stressed and concerned about being separated from Jean.
[6] You then spoke to Jean over the next week about a suicide pact. Jean nodded in agreement when you raised this plan before forgetting the arrangement because of her Alzheimer’s.
[7] You then started preparing to give effect to the plan to end both of your lives by taking additional blood thinners over the course of the week. On Sunday 8 October 2023, you and Jean woke early and travelled to McDonald’s and Robert Harris Papamoa for your respective breakfasts. You sat in the car before returning home prior to midday.
[8] At home, you prepared to carry out the plan. You took a necktie from the laundry and placed it under a couch cushion in the lounge close to Jean’s armchair. You also placed two kitchen knives in the bathroom, with the intention of killing yourself after killing Jean.
[9] In the afternoon you made a cup of coffee for Jean and sat with her in the lounge. At some point you got up and asked Jean to drink her cup of coffee before moving towards her. Jean stood up to pick up the cup of coffee and then put it back down again. You took the necktie from underneath the cushion and wrapped the ends around your hands. You then helped stand Jean up from her sitting position. You then wrapped the necktie around Jean’s throat and pulled at both ends restricting her breathing as you lowered her to the floor. She called out “oh John” several times as you did this. Jean died from strangulation.
[10] You then went to the bathroom and attempted to commit suicide. After failing to do so, you called a relative, and then the Police. You have said to the Police that you couldn’t live without Jean, and you planned to kill yourself to be with her.
[11] Mr Salter, before sentencing you today, I have had the benefit of reading a psychiatric report of consultant psychiatrist Dr Tan dated 12 February 2024 and a report dated 8 February 2024, prepared by the Department of Corrections.
[12] The report completed by Dr Tan elaborates on the events described in the summary of facts. That report explains that in the week leading up to the offending, a number of factors culminated in you experiencing a sense of pressure, which has been described by Dr Tan as significant emotional distress. The retirement home worker had approached you about what they described as Jean’s “dangerous” wandering behaviour. You considered this was an exaggeration of the situation. You felt uncertainty as to the villages potential intention to “evict” you, or move Jean into a Dementia care village. The thought of such separation was unbearable for you, a sentiment which you believe was mutually held by Jean. You considered that Jean would have detested her relocation to a care facility and you were concerned about the potential cost. You also had worries about Jean’s ability to assist you in the event of your illness or demise, which was compounded by the absence of close friends, family or offspring.
[13] In explaining things to Dr Tan you talked of the conversations with Jean during periods when you considered she was coherent, which involved discussions about a mutual willingness to “go together”. You said that Jean responded non-verbally, by nodding, although her memory was fleeting and she would forget the substance of dialogues within a brief span of five minutes. You said that the discussions of “ending it” occurred on numerous occasions leading up to her death. Your motivation for the offending was so that you and Jean would remain together eternally.
Personal circumstances
[14] Mr Salter you are 80 years old. You were born and grew up in North London. You migrated to New Zealand with your wife in 1975, and you and your wife had a history of stable employment up until to your semi-retirement 20 years ago. You have led a law-abiding life, with no previous convictions.
[15] You and Jean met when you were both very young, and knew one another for 65 years and had a happy 60 year marriage. In your discussions with Dr Tan you referred to Jean as “the best wife” who managed all household responsibilities up until her mental decline. You acknowledged that you had a heavy dependence on her. You do not have any children, and you do not have any close friends or family in New Zealand.
[16] You do not have a prior history of mental health disorders, and at the time of the offending you were not labouring under any psychiatric condition, such as delusional motivations. You rationally planned out your actions, which followed a logical pattern.
[17] You have expressed profound regret and remorse over your offending. After your attempts at suicide failed, you immediately called your sister, followed by the Police. You pleaded guilty at the earliest opportunity. You believe that Jean did not deserve this outcome, and you have openly expressed self-disgust in relation to your actions.
Approach to sentencing for murder
[18] Under s 102 of the Sentencing Act 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.2 The strong presumption in favour of life imprisonment reflects the sanctity of human life. It may only be displaced only in compelling cases having regard to the principles and purposes of sentencing.3 If the sentence of life imprisonment is imposed, the Court must impose a minimum period of imprisonment of not less than ten years.4
[19] Under s 104 the Court must also impose a minimum period of imprisonment of at least 17 years in murder cases which involve one or more of the aggravating factors listed unless it would be manifestly unjust to do so. The aggravating factor identified under s 104(1)(g), when “the deceased was particularly vulnerable because of his or her age, health, or because of any other factor”, is engaged here.5 Where s 104 is engaged, the Court of Appeal has held it is appropriate to first address that section, before considering the application of s 102.6
[20] The Crown accepts, however, that it would be manifestly unjust for the 17 year minimum period of imprisonment to apply, and I agree with that view. For the reasons that I will elaborate on in greater detail when considering the question of life imprisonment there could be no real justification for imposing such a term of imprisonment upon you.
2 Sentencing Act 2002, s 102(1). If the Court does not impose life imprisonment, it must give written reasons for not doing so under s 102(2).
3 R v Van Hemert [2021] NZCA 261 at [36]. R v Rapira [2003] 3 NZLR 794; R v Smail [2007] 1 NZLR 411 (CA) at [14].
4 Sentencing Act, s 103(1) and (2). There is no discretion to sentence below that figure Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298.
5 R v Tai [2018] NZHC 1602.
6 R v Smith [2021] NZCA 318 at [45]. The Court noted that the implications of s 104 will usually influence the assessment of whether or not the s 102 presumption is displaced although it will not be determinative.
[21] The more significant and contested issue is whether a sentence of life imprisonment would be manifestly unjust in light of your circumstances and the circumstances of the offence. The Court must assess manifest injustice from an overall weighing of each of these two elements.7 The Supreme Court recently discussed the exercise in Van Hemert v R, noting that:8
...each of the two elements must be considered, but manifest injustice is to be found from an overall weighting, rather than investing either element with the power to veto the other. It follows that it is possible that one element might dominate the analysis in favour of dispensation under s 102.
[22] The assessment requires me to consider the gravity of the offending and your culpability having regard to your personal aggravating and mitigating factors.
[23] Section 102 was introduced to allow for flexibility in the sentencing regime as it applies to murder, and account for the small number of cases in which a mandatory life sentence is not appropriate.9 The report of the Justice and Electoral Committee on the Sentencing and Parole Reform Bill, commented on the limits of the manifestly unjust exception in the following terms:10
A very small number [of those convicted of murder] will receive a sentence less than life imprisonment. These may include “mercy killings”, failed suicide pacts and situations in which the accused is termed a “battered defendant”. There is a very strong presumption in favour of life imprisonment for murder in the Bill.
[24] I have been assisted by the comparable cases that have been referred to in the submissions of counsel. The facts of your case are strikingly similar to those in R v Law — a case that arose in this Court some 20 years ago. In that case, a 77 year old man pleaded guilty to murdering his wife aged 73.11 They had shared a 50 year marriage, towards the end of which the offender’s wife was diagnosed with dementia. The Court accepted in that case that the two had made a pact eight years prior to the diagnosis that if this happened, they would assist each other to die. Two weeks prior to the wife’s death, Mr Law made a serious attempt to end their lives but failed. Mr Law then tried again, giving his wife a quantity of sleeping pills and striking her
7 Van Hemert v R [2023] NZSC 116, [2023] 1 NZLR 412 at [57].
8 At [57].
9 Sentencing and Parole Reform Bill, first reading (14 August 2001) 594 NZPD 10910–10911.
10 (14 August 2001) 594 NZPD 10910–10911.
11 R v Law (2002) 19 CRNZ 500 (HC).
head with a mallet, and suffocating her with a pillow. Mr Law determined that she had died and then made a determined effort to commit suicide by slashing his wrists. Like you his attempt was unsuccessful, and the following morning he phoned the Police to inform them of what he had done. The Court accepted that the offender genuinely believed he was carrying out his wife’s wishes, and had acted out of compassion rather than malice. The Court concluded that it would be manifestly unjust to impose life imprisonment.
[25] The courts have frequently cited R v Law in referencing the established category of manifest injustice under s 102.12 Like this case, Law involved elements of what is called a mercy killing, and is frequently cited alongside the category of case where individuals kill in the context of significant stresses associated with caring for a victim, and partly to relieve the suffering of a loved one.
[26] The Crown argue that there are factors that distinguish that case from your case, and say that this is not a case where it would be manifestly unjust to impose a sentence of life imprisonment. But whilst there are some differences in the case of Mr Law — for example that the agreement in that case was more clear cut and long standing — it is very difficult not to see the two cases as comparable. In particular there are the following interrelated factors:
(a)You killed Jean as part of a suicide pact. You had planned for, and took steps to end your own life in conjunction with killing Jean but were just not able to bring yourself to carry out your suicide. I also accept that you believed that Jean had agreed to the plan to die together. It was accordingly an agreement to end your lives together of the type referred to by the Justice and Electoral Committee when establishing this category of exception to life imprisonment.
(b)Secondly, you took Jean’s life because you genuinely thought this was in her best interests because of the adverse effects of her Alzheimer’s.
12 In Van Hermert v R, above n 7, at [113] the Supreme Court cites R v Law as an example of the category of a mercy killing often combined with significant stressors associated with care of the victim.
This was significantly impairing her quality of life, and which now appeared to give rise to a need for you to be separated when you had lived your lives together in a mutually dependent way.
(c)Thirdly, the circumstances were simply beyond your capacity to manage. You had started trying to care for Jean yourself, but when the need for her to move to an Alzheimer’s facility was raised it was apparent to you that you were not going to be able to continue your lives together, and it was simply beyond your capacity to manage her.
(d)Fourthly, you are profoundly remorseful for what you did. You deeply regret doing it. Your remorse is genuine, and you appear to me to be a broken person deeply affected by what has happened, and by what you did.
(e)Finally, you are 80 years of age. You are finding life in prison extremely difficult. Imposing a term of imprisonment that is any longer than the minimum that is required to hold you accountable for your conduct in those circumstances would not be justified.
[27] Concluding that life imprisonment would be manifestly unjust is also supported by the other cases that have been referred to by counsel — commonly referred to as the mercy killings, or carer burnout cases — that involve similar actions of killing somebody because of extreme personal circumstances. I will address some of those cases in a little detail later, but they support the argument that it would be manifestly unjust to impose life imprisonment here.
[28] There are, however, several aggravating factors involved in your offending. The first of those is premeditation. This included you speaking to Jean in the week leading up to the offending, and you taking steps to prepare for the final act by placing the necktie under the cushion. It involved a degree of calculated violence, which was not impulsive or spontaneous, but well considered, which adds to the gravity of the offending.
[29] The second of these is Jean’s vulnerability, which I have already addressed. Jean was 78 years old, suffering from Alzheimer’s with symptoms of confusion and memory loss. Jean was not physically capable of defending herself, which was compounded by her fragile mental state. This exacerbates the gravity of your offending.
[30] The extent of loss is also aggravating. Jean lost her life as a consequence of your actions which is the greatest loss. The law gives great weight to the sanctity of human life, reflected in the gravity of the charge which you face, and the appropriate sentence ought to reflect the loss of Jean’s precious life.
[31] Each of those aggravating factors cannot be viewed without considering the context in which you acted, however. I consider that your motivations are a mitigating factor here. You were not motivated by malice or anger, but by desperation to stay with your wife and carry out a wish that you believed you both shared, and your view of her best interests.
[32] In determining whether life imprisonment would be manifestly unjust it is of significance to consider the principles and purposes of sentencing. I do not consider imposing a term of life imprisonment would enhance your rehabilitation or reintegration into society. I also do not consider that imposing such a sentence would have any meaningful deterrence effect as the offending was as a result of an unusual set of circumstances. The Crown do not contend that you pose an ongoing risk to public safety. You have no history of violent offending, and this event was driven by a deeply personal commitment to your life with Jean. There is no suggestion you have a propensity for violence or would harm others around you. A life sentence, which is effectively a form of preventative detention, is hard to justify in those circumstances.
[33] The only relevant principles that apply to suggest that life imprisonment is not manifestly unjust are the requirements to denounce your conduct, to hold you accountable, and to provide for the interests of the victim. But I do not see that the length of any prison sentence has any true significance in terms of these principles. The very fact that you are convicted of murder, and will be sentenced to imprisonment, by itself denounces your conduct and holds you responsible. You can be sentenced to
imprisonment of a term that is appropriate to single out your conduct in a way that clearly indicates that what you did was wrong. But that term should be no more than is necessary to serve that purpose. You are 80 years of age and imposing a sentence that would involve you ending your life in prison goes too far.
[34] Having regard to your age, the distress of impending separation which drove you to offend, your intention to carry out what you believed was what you and Jean agreed was in your joint best interests, your acceptance of responsibility and guilty plea, your remorse and limited likelihood of reoffending, I am satisfied that it would be manifestly unjust to impose a sentence of life imprisonment in your case.
Finite sentence
[35] I now need to address the sentence of imprisonment that should be imposed on you for your offending. Doing so involves three steps. The first is to determine a starting point that is appropriate for this offending having regard to comparable cases. The next step is, having determined that starting point, to apply discounts from that starting point, which are expressed in terms of a percentage, because of circumstances personal to you. And then finally I must determine whether there should be a minimum period of imprisonment associated with the ultimate end sentence which I have reached.
[36] In advancing submissions on your behalf your counsel has naturally referred to the case of R v Law, the case with striking similarities with your case, because in that case the ultimate sentence arrived at by the Court was as low as 18 months’ imprisonment, with leave to apply for home detention.13 But notwithstanding the similarities between your case and that case, and the desirability of consistency across the sentencing regime reflected in s 8(e) of the Sentencing Act, I think that sentence would be too low. Law was a decision arrived at soon after the enactment of the Sentencing Act, and the exception to life imprisonment contemplated by s 102. There have been a number of other cases since that time which do not involve exactly the same circumstances, but involve comparable cases where a person has murdered someone in distressing circumstances. I consider they provide better guidance.
13 R v Law, above n 11, at [65].
[37] Law was more recently applied by the High Court in R v Morton, however.14 That case also had similarities as it concerned Mr Morton and his wife, both in their eighties, in circumstances where Mrs Morton had had a significant stroke and could no longer care for herself, and Mr Morton tried to end their lives in a murder suicide attempt which was intercepted. The High Court there applied Law and assessed a starting point for the charge of attempted murder of 18 months’ imprisonment. But that case cannot be comparable because Mr Morton was unsuccessful. It was only a case of attempted murder which is a much less serious offence, as is reflected in the presumption of life imprisonment for the offence of murder.
[38] I consider greater guidance can be found from other cases. In R v Knox, the defendant killed her daughter who was 20 years old and severely disabled.15 The victim’s disabilities caused her pain, and caused her to be violent and disruptive, often attacking Ms Knox who significantly struggled to cope with the full time care of her. Ms Knox felt let down by the healthcare system, became “increasingly desperate and frustrated”, and felt she had no other option. Ms Knox gave the victim a sedative, then held her hands over the victim’s mouth and nose until the victim stopped breathing. The Court found it would be manifestly unjust to impose a sentence of life imprisonment on the basis that this was exactly the kind of circumstances that the ‘manifestly unjust’ option was designed to address.16 In setting a finite sentence the Court took a starting point of six years’ imprisonment to acknowledge the intentional taking of a precious life balanced alongside Ms Knox’s reduced culpability. It then reduced eight months for good character and the minimal prospect of further offending, and then 25 per cent for her immediate acceptance of responsibility and guilty plea, resulting in an end sentence of four years’ imprisonment.
[39] In R v Lawrence, Ms Lawrence pleaded guilty to murdering her daughter who suffered from an incurable disease that caused progressive degeneration of brain cells resulting in cognitive and psychiatric disorders.17 After 13 years of being cared for in facilities, the victim was discharged to Ms Lawrence’s care for two years. Ms Lawrence suffered from carer burnout, significant sleep deprivation, depression,
14 R v Morton [2021] NZHC 1096. 15 R v Knox [2016] NZHC 3136. 16 At [72]–[73].
17 R v Lawrence [2021] NZHC 2992.
stress and guilt associated with caring for the victim. The victim frequently expressed a wish not to be alive, saying she wanted to die before her condition got too bad. The victim attempted suicide multiple times and asked Ms Lawrence to end her life. One day, Ms Lawrence ultimately decided she was going to kill her daughter and then herself. She went outside and hung a rope noose from a tree, and wrote a note to her family. She placed a pillow over her daughter’s face, and then manually strangled her. She then went outside with the intention of killing herself, but ultimately changed her mind and called the Police immediately. Ms Lawrence was motivated by profound sadness, exhaustion, and a wish to ease the victim’s suffering. The Court took a starting point of eight years’ imprisonment, relying on Knox, and then deducted 18 per cent for guilty plea, background, good character and rehabilitation prospects and minimal risk of reoffending, resulting in a finite sentence of six years, six months.
[40] I consider these cases are comparable when it comes to establishing the starting point. But I consider it should be towards the higher end of the range identified by those two cases. In particular I consider the appropriate starting point is eight years’ imprisonment. The higher starting point is appropriate because, in the end, you never allowed Jean to have the opportunity to live the rest of her life being cared for in an appropriate way for her disease, and unlike Knox it was not a case where a significant period of time had gone by and there was carer burnout.
[41] But I consider that the discounts that should be available to you for personal circumstances should be a little higher than either of these two cases. Discounts for guilty pleas range up to 25 per cent depending on whether they are entered at the first available opportunity. You entered your guilty plea at the first available opportunity. For that reasons I consider that you are entitled to a 25 per cent discount for that reason alone.
[42] In terms of the other factors, I consider it particularly significant that you are of good character, are remorseful, you are 80 years of age, you have little community support, and you are clearly particularly vulnerable in prison. These factors warrant further discounts for personal mitigating circumstances. I do not think it appropriate for you to end your life in prison, and see the sentencing principles of rehabilitation and reintegration as important. You need to have a pathway forward for release
following serving an appropriate period of time in prison. For those reasons I consider a further 25 per cent discount for additional factors is appropriate on top of your discount for your guilty plea.
[43] That means that your end sentence would be four years’ imprisonment the same as it was in the case of Knox.
[44] I now consider whether or not to impose a minimum period of imprisonment.18 If I do not, you will be eligible to apply for parole after you have served one third of that sentence. I must decide whether or not a longer minimum period is necessary to adequately meet the sentencing purposes of deterrence, denunciation, accountability and protection of the community.
[45] Again in terms of those principles there will be a significant period of time that you will serve in prison to meet the purposes of denunciation and accountability. Deterrence and protection are not relevant in my view. I see no purpose is served in terms of the Sentencing Act to impose a minimum period of imprisonment. I consider that you should be eligible for parole after serving one third of your sentence.
[46] Mr Salter there are really important ramifications of this. You need to serve your time. But it is important that you do not give up hope. You will need to start thinking about your future, and how you will spend the end of your days. I know that you have no friends of significance or family in New Zealand. It may be that when you are released you will need to think about returning to the United Kingdom or some other arrangements may be needed for you to spend your life in New Zealand. But you need to start thinking about that now. You have already spent four months in prison, and when you come before the Parole Board after serving one third of your sentence you will need to think where your future will lie. The Parole Board will want to talk to you about that with you. You need to start making plans now, and perhaps your family in the United Kingdom will need to start thinking about that too.
18 Section 86.
Result
[47]Mr Salter, can you please stand.
[48] On one count of murder, I sentence you to four years’ imprisonment. Please help Mr Salter stand down.
Cooke J
Solicitors:
Pollett Legal, Tauranga for Crown
Pacific Coast Law, South Waikato for Mr Salter
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