The Queen v Edwards

[2005] NZCA 70

IN THE COURT OF APPEAL OF NEW ZEALAND

CA371/04

THE QUEEN

v

PHILLIP LAYTON EDWARDS

Hearing:16 February 2005

Court:Chambers, Williams and Salmon JJ

Counsel:R Wade for Appellant

A J F Perkins for Crown

Judgment:13 April 2005 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Chambers J)

Sentencing in manslaughter cases

[1]        This appeal raises the difficult question of how to approach the fixing of sentences in manslaughter cases.  Phillip Edwards was charged with murdering David McNee, a well-known television personality.  A jury found him not guilty of murder but guilty of manslaughter.  The trial judge, Frater J, sentenced Mr Edwards to nine years’ imprisonment.  She also imposed a minimum non-parole period of four and a half years’ imprisonment. 

[2]        Mr Edwards has appealed against his sentence.  His counsel, Mr Wade, has submitted that the sentence should have been in the vicinity of four to five years.  Mr Wade accepts that this was an appropriate case for a minimum term of imprisonment and does not quibble with the judge’s 50% assessment.  That would mean, however, on his much reduced headline sentence, that the minimum term would be only two years’ to two and a half years’ imprisonment.

[3]        Mr Wade submitted that there were three essential errors in Her Honour’s approach to the sentencing:

(a)The sentence was inconsistent with other authorities.  The two cited to us were R v Rota CA208/97 24 September 1997 and R v Ali HC AK CRI 2003-292-1224 19 August 2004. 

(b)The judge had given no credit or insufficient credit for the fact that Mr Edwards had always been prepared to plead guilty to manslaughter, the crime of which he was eventually found guilty. 

(c)The judge regarded as relevant the severity of Mr Edwards’s attack on Mr McNee.  Mr Wade submitted that that was erroneous, as the jury’s verdict indicated that they were satisfied that Mr Edwards had lost the power of self-control as a consequence of Mr McNee’s provocation.  Mr Wade’s submission was that it was inappropriate to inflate the sentence in circumstances where the appellant was acting under provocation, that provocation being sufficient to deprive a person, having the power of self-control of an ordinary New Zealander, of the power of self-control.

[4]        We shall deal with those issues later in this judgment.  We shall first set out the facts.

The facts of this case

[5]        We are indebted to Frater J for her succinct summary of the facts in her sentencing notes.  Mr Edwards, on 20 July 2003, was with two friends on Karangahape Road in central Auckland.  He noticed a black Audi TT convertible driving slowly by.  When it stopped at the traffic lights, Mr Edwards ran up to the car and jumped into it.  The driver was Mr McNee.  One of Mr Edwards’s friends had noticed him in the Owl Bar a short time earlier.  That friend had said that Mr McNee had been staring at him. 

[6]        Mr Edwards knew, according to the judge, by the way Mr McNee was driving that the driver was looking for someone to pick up.  Mr Edwards’s money had run out: he had only shortly before been released from prison on parole.  Mr Edwards told Mr McNee that he would masturbate himself in front of Mr McNee, in return for a fee.  A fee of $120 was agreed.  Mr Edwards thought that the act would take place in one of the city parks, but Mr McNee said that his home was nearby.  Anyway, he said, Mr Edwards needed to have a shower.  Mr Edwards went with him. 

[7]        At Mr McNee’s home, Mr Edwards undressed and had a shower.  He then went into the main bedroom where Mr McNee was waiting.  Mr Edwards started to perform his show. 

[8] The crucial events are those that followed. In this regard, Frater J reported what Mr Edwards had said in evidence. She expressed some doubt about the details, but presumably, given the jury’s finding, they considered something along these lines to have been a reasonable possibility. Mr Edwards said that, although initially during the show Mr McNee appeared friendly and kind, his demeanour changed after he used a substance, which Mr Edwards believed was amyl nitrite. According to Mr Edwards, Mr McNee then started questioning him about his previous homosexual experience. Mr Edwards said that he told him that he was not into that type of activity; he was not gay. But despite that, Mr Edwards said that he got on all fours, as he was asked, all the while trying to complete his performance. He said that Mr McNee then started making animal noises, kissed his leg, rubbed his hands on Mr Edwards’s buttocks, and inserted his fingers into Mr Edwards’s anus. Frater J said she was less sure of whether the homosexual advance was “to the extent” claimed by Mr Edwards: sentencing notes, HC AK T2003-004-025591 16 September 2004 at [48].

[9] After Mr McNee inserted his fingers into Mr Edwards’s anus, Mr Edwards got to his feet, asked Mr McNee whether he thought he was a female, and started hitting him about the head. Mr Edwards was very angry. Mr Edwards gave two different accounts as to how many times he hit Mr McNee. In his police interview, he estimated he had struck Mr McNee around 30-40 times. In his evidence at trial, he said that he could not remember what happened after the first one or two blows. The judge’s conclusion on all the evidence at the trial was “that the violence was extreme and sustained” and she accepted as accurate the 30-40 blows Mr Edwards referred to in the police interview: at [49]-[50]. The judge also considered it possible on the evidence that Mr Edwards had attempted to strangle Mr McNee: at [52].

[10]      Mr McNee was on the floor.  There was blood everywhere.  He was not moving.  He looked dead.  Mr Edwards put a rug over him so that he did not have to look at him.  Mr Edwards then had another shower to remove the blood off himself and went looking for the keys for the car.  In the course of doing so, he found bottles of alcohol, which he took, together with some of Mr McNee’s clothes, his wallet and credit cards.  He put them all into the Audi and drove to a place in the city where some of his friends were.  They helped him to unload the contents of the car and dispose of the bloodied clothing.  During the next eight days he and various friends consumed the alcohol and drove around in the car.  Mr Edwards wore Mr McNee’s clothes.  One of Mr Edwards’s friends tried unsuccessfully to use Mr McNee’s credit cards.

[11]      Mr Edwards was apprehended by the police on 28 July.  He was interviewed over a five hour period.  For the first three or four hours of the interview, he gave a completely implausible explanation about how he came by the car.  He denied ever having been at Mr McNee’s home or knowing Mr McNee.  He said that he knew about the death only through reading the paper.  The story changed, however, after the interviewing officer told him that his fingerprints had been found in Mr McNee’s home.  It was only at that stage that he changed his position and admitted killing him.

[12]      Before leaving the facts, we mention one matter.  This is a case where the verdict of manslaughter may have been reached on the basis of provocation or lack of murderous intent.  Both defences were run at trial.  In circumstances such as these, it is for the trial judge to determine which is the more likely explanation for the jury’s verdict.  The judge should give reasons for his or her conclusion: R v Byrne [2003] 1 CrAppR(S) 338 at [12]-[16]. Frater J did that in this case. She identified provocation as “the more likely reason for the verdict”: sentencing notes at [39]. Neither Mr Edwards nor the Crown disputes the judge’s conclusion on that matter.

Inconsistency with other authorities

[13]      It is a fundamental principle of sentencing that the court “must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances”: Sentencing Act 2002, s 8(e).  That involves looking carefully at the characteristics of the particular offender and the characteristics of the particular offending and then comparing such characteristics with other cases and the outcomes of those cases. 

[14]      This comparative exercise is never easy in manslaughter cases.  For a start, there is in this country no guideline judgment (or tariff case) for manslaughter sentencing.  This court, at least to date, has deliberately eschewed making a guideline judgment because of the wide range of offending and offenders coming within the manslaughter umbrella: R v Leuta [2002] 1 NZLR 215 (CA) at [49]-[59]. In that case, this court drew a distinction between cases like R v Witika [1993] 2 NZLR 424 (CA) and others like R v Albury-Thomson (1998) 16 CRNZ 79 (CA).  In the former, the offenders, sentenced as parties, received sentences of 16 years’ imprisonment.  Had the principal offender been identified, the maximum of life imprisonment would, the court said, have been appropriate.  In the latter case, this court considered 18 months’ imprisonment appropriate.  So the offending differs greatly; so too do the offenders.  In these circumstances, the sentencing judge must carefully analyse the case before him or her and then proceed, with caution, to compare the case with others.  Appellate courts, when reviewing manslaughter sentences, must also proceed with caution, especially in cases where the sentencing judge has presided over a defended trial and has thereby acquired a detailed feel for the offender’s true culpability.

[15]      In this case, Frater J undertook a very careful analysis of the circumstances of both the offender and the offending. 

[16]      So far as the offending was concerned, Frater J identified two principal features.  First, there was no dispute that Mr McNee’s “provocation” occurred over a very short period of time.  It is apparent that, at best from Mr Edwards’s version of events, the “provocation” did not commence until Mr McNee kissed Mr Edwards’s leg.  The time between that and the start of Mr Edwards’s frenzied attack on Mr McNee must have been very short.  It is also noteworthy, as we have observed already, that Frater J was less sure of the extent of Mr McNee’s homosexual advance prior to the beating starting.  If the advance was limited to Mr McNee’s kissing Mr Edwards’s leg and rubbing his hands on Mr Edwards’s buttocks, then the scale of provocation (given the circumstances) would have to be described as slight.  Mr Edwards was after all voluntarily taking part in a sexual activity with Mr McNee in return for payment.  Obviously he appreciated that Mr McNee was intending to get sexual satisfaction from the encounter.  Both men were naked in Mr McNee’s bedroom.  Mr Edwards was on all fours, masturbating himself.  A mere touching of leg and buttocks in those circumstances could hardly have been unexpected.  If, of course, Mr McNee’s actions went further and included insertion of his fingers into Mr Edwards’s anus, then the degree of provocation was greater – although even then that act would have to be seen in its context. 

[17] The second feature Frater J identified was the degree of violence. She had the great advantage of being the trial judge and hearing the evidence. She described the degree of violence as “extreme and sustained”: at [49]. She accepted that Mr Edwards had struck Mr McNee around 30 to 40 times (at [50]) and that it was also possible that Mr Edwards had attempted to strangle him. In short, she described the beating as “callous and cruel”: at [66]. There is no dispute that Her Honour’s findings as to the nature of the offending were open to her.

[18] As to Mr Edwards’s personal characteristics, Her Honour noted in particular four points. The first was the extensive list of previous convictions and their nature: at [16]. Mr Edwards, although only 24, had amassed 56 convictions covering “the full range of offending”. Among those convictions were three convictions for assault. The Sentencing Act specifically provides that previous convictions may be an aggravating factor: s 9(1)(j).

[19]      Secondly, Her Honour noted that this offending occurred while Mr Edwards was still subject to a sentence.  Indeed, he had been released from prison on parole only 11 days prior to this incident.  During those 11 days Mr Edwards had been arrested for and charged with fighting in a public place.  Three days after that incident he was arrested for and charged with theft.  It was abundantly clear that Mr Edwards was completely out of control and had no intention whatever of changing his lifestyle.  Her Honour noted that under s 9(1)(c) she was entitled to take into account that the offending was committed while still subject to a sentence. 

[20] The third matter that Her Honour noted was Mr Edwards’s failure to do anything to help Mr McNee after the beating. Once the flurry of blows had come to an end and Mr Edwards had presumably regained his power of self-control, what did he do? The evidence was that Mr McNee would still have been alive at that stage, and indeed it is possible that his life might have been saved. But, as Her Honour found, Mr Edwards made no attempt to help. On the contrary, as the judge observed, he was sufficiently in control of himself to have a shower, search through Mr McNee’s cupboards, and take his alcohol, his credit card, his clothes and his car: at [60]. That failure to provide assistance was a relevant factor.

[21] Finally, Her Honour noted Mr Edwards’s lack of remorse. A lack of remorse is not an aggravating feature, but it is nonetheless highly relevant in the sentencing process. In this regard, Her Honour noted what Mr Edwards did in the days after the killing. He drove round in Mr McNee’s car, showing off. He bragged to friends that he had killed someone. When he was interviewed by the police, there was a snippet on the videotape (while the interviewing officer was out of the room) when Mr Edwards did a rap and said that he considered himself a star: at [61]. Her Honour was fully justified in concluding that later expressions of remorse were contrived.

[22]      Those then were the features of the offending and the offender which impressed themselves on the trial judge.  There is no challenge to Her Honour’s assessment in that regard. 

[23]      It is in light of that assessment that we must now turn to the “comparable authorities” with which it is said Her Honour’s sentence was inconsistent.  As we have said, counsel cited to us only two authorities, Rota and Ali.  We accept that they are of assistance, particularly in view of the fact that in both of them the killing occurred after a homosexual advance by the victim to the killer.  But on close analysis neither case is truly comparable. 

[24]      This case overall is much worse than Rota.  The violence was much greater.  Further, none of the personal circumstances Frater J identified applied to Mr Rota: he was only 19 at the time of his offending and had no previous convictions.  The sentencing judge, based on the information before him, concluded that Mr Rota was not a person prone to violence.  As well, that judge concluded that Mr Rota had strong family support and was unlikely to appear before the court again.  Frater J was faced with sentencing a man whose personal attributes could not have been more different.  In addition, Rota in this court was primarily a conviction appeal.  The sentence appeal received but fleeting attention and appeared to centre on an issue as to whether the sentencing judge had treated a continuing assertion of innocence by the offender as an aggravating factor.  No other decisions were cited in this court’s judgment or in the High Court judge’s sentencing notes. 

[25]      Ali is a High Court sentencing decision, as it happens delivered by one of the members of the current panel.  The overall circumstances in Ali were much less serious than here.  Even by the date of sentencing, Mr Ali was only 17.  He had no previous convictions.  Mr Ali was also described as being unsophisticated.  While Mr Ali had stabbed his victim on at least five occasions, it would seem that the attack was much less frenzied than Mr Edwards’s on Mr McNee. 

[26] Frater J distinguished these two cases on the basis that the circumstances of the defendants in those cases were very different from Mr Edwards’s: at [62]. She did not consider that the sentences imposed in those cases reflected the prolonged nature of the beating Mr Edwards had inflicted, his previous convictions for offences of violence, and his failure to respond to previous sentences. She noted that Messrs Rota and Ali were both much younger than Mr Edwards, with no previous convictions: at [63]. We agree with Her Honour’s reasons for distinguishing those authorities.

[27]      We have undertaken our own research as to comparable authorities.  We have not found anything truly comparable in New Zealand.  That is because most provocation cases arise from domestic circumstances, where the provocation has been intense and over a prolonged period, a quite different situation from the circumstances of the present case.  An Australian case which is somewhat comparable is R v Auberson [1996] QCA 321. In that case, Mr Auberson had killed his wife after she had told him that she was having an affair and was going to leave him. The wife had allegedly said to him that she was going to take his superannuation so that she could set herself and their child up. Mr Auberson was found not guilty of murder but guilty of manslaughter on the grounds of either provocation or diminished responsibility. The trial judge sentenced Mr Auberson to nine years’ imprisonment. The Queensland Court of Appeal held that that sentence “was at or near the bottom of the range”: at 7. The provocation in that case was slight – perhaps even slighter than in the present case. The reaction was even worse than in the present case. But the offender did not have Mr Edwards’s track record. Frater J’s sentence could certainly not be said to be out of line with the decision in Auberson.

[28]      We have derived the most assistance from comparing the present case with a number of British cases.  As one would expect, that country’s larger population has thrown up more provocation cases.  As well, the British have done a lot of work in this area in trying to draw up sentencing guidelines in provocation cases.  We have found this work in particular of great value.  The British have now systematised the way in which sentencing guidelines or tariffs are established.  The burden no longer primarily falls on the Court of Appeal but rather is the responsibility of two specialist bodies, the Sentencing Advisory Panel and the Sentencing Guidelines Council.  This is not the occasion to set out in detail how Britain’s new system works.  It would certainly seem to have a number of attractive features which are not easily replicated in a court-based tariff-setting system. 

[29]      In any event, the Home Secretary issued a reference under s 81(3) of the Crime and Disorder Act 1998 (UK), asking the Sentencing Advisory Panel “to consider the issue of sentencing where provocation is argued in cases of homicide, and, in particular, domestic violence homicides”.  In March last year, the panel published a consultation paper: Consultation Paper on Sentencing of Manslaughter by Reason of Provocation (11 March 2004).  Following consultation, the panel submitted formal advice to the Sentencing Guidelines Council.  That formal advice is not yet publicly available.  Nor has the council yet published its guideline.  It is expected that that guideline will be released in May.  It will merit, when published, careful scrutiny in this country.  Until the guideline is available, this preliminary work by the panel, as contained in its consultation paper, must be treated with some care.  Notwithstanding that, we have found the consultation paper very helpful, particularly in the following respects.  First, it contains a useful collection of appellate decisions in the provocation area.  Secondly, it suggests a draft categorisation of cases and a “starting range” for each category. 

[30]      The panel considered in some detail 42 cases between July 2000 and June 2003 where juries had returned convictions for manslaughter on the grounds of provocation.  The panel analysed the circumstances of the offending and the sentences imposed.  (So far as we are aware, no comparable analytical work has been undertaken in New Zealand.)  The figures tended to support a conclusion that cases resulting from “domestic violence” tended to attract lower sentences than non-domestic cases.  “Domestic violence” was defined as “any criminal offence arising out of physical, sexual, psychological, emotional or financial abuse of one person against a current or former partner in a close relationship, or against a current or former family members”.  The custodial sentences imposed were as follows:

Custodial sentence passed	Domestic	Non-domestic
Up to 3 years	5	0
Over 3 years up to 5 years	10	1
Over 5 years up to 8 years	8	7
Over 8 years	1	3
Don’t know	3	4
Total	27	15

[31]      The panel then went on to review appellate authorities.  They concluded (at [26]):

Sentencing ranges (after a contested trial) to the extent that they may exist may be summarised as follows:

______________________________________________________________

Sentencing range                 Case Features

______________________________________________________________

[1] 12 years   Firearm carried and used after retaliation

[2] 10-12 years   Knife carried and used or great brutality

[3] 7 years   Moderate provocation and sudden retaliation

[4] 5 years   A high degree of provocation, sudden retaliation, strong mitigation

[5] 3 years or less   The highest degree of provocation including violent attack, even terror, evoking extreme passion

[Category numbers added.]

[32]      We have considered a number of the appellate authorities to which the panel refers.  The panel’s summary appears to us to be accurate.  Frater J’s sentence, as it happens, falls between category 2 and category 3.  We think that is exactly where this case does fall.  Even if it is seen as a category 3, Mr Edwards’s personal characteristics, as found by the judge, would certainly justify an uplift from the “seven year” starting point for the third category.  We do not consider it necessary to set out the details of the cases we have considered (save one), but they include R v Peddie (1990) 12 CrAppR(S) 176, R v Light (1995) 16 CrAppR(S) 824, R v McMinn [1997] 2 CrAppR(S) 219, Attorney-General’s Reference No. 33 of 1996, (Daniel Latham) [1997] 2 CrAppR(S) 10, R v Brereton (1993) 14 CrAppR(S) 719, R v Byrne (supra), and R v Carter [2003] 2 CrAppR(S) 524. 

[33]      We specifically mention R v Naylor (1987) 9 CrAppR(S) 302 because it has some factual similarity to the current case.  In that case, Mr Naylor, the appellant, was with a prostitute.  After some sexual play between Mr Naylor and the prostitute, she discovered that he was without money.  She remonstrated vigorously.  According to him, she tore off a chain which he had around his neck and set about him.  His reaction to that was to put his hands around her throat and strangle the life out of her.  He was charged with murder, but acquitted on that count.  He was found guilty of manslaughter on the basis of provocation.  Like the present case, the provocation was slight, the reaction frenzied and brutal.  Mr Naylor had an appalling criminal record.  The trial judge sentenced Mr Naylor to life imprisonment.  The Court of Appeal reduced the sentence to 11 years’ imprisonment.  The court also noted that in cases of provocation, such as reduce murder to manslaughter, sentences in the range of seven years, plus or minus two or three years are usual: at 305.  That is a normal range of four to ten years.

[34] The panel, having analysed what the courts had been doing, concluded that “an assessment of the level of the provocation as shown by its nature, degree and duration is the critical factor in the sentencing decision”: at [29]. Consistent with that, the panel, in its proposals, suggested three sentencing ranges defined by reference to the level of provocation – low, substantial, and very high. The panel’s recommendation then continued as follows:

55…

c) Within each range, a starting point is proposed which is based on the length of time over which the provocation took place.  So, for the most serious offences, the starting point of 12 years is based on a low level of provocation which occurred over a short time.  If that provocation, though low, occurred over a longer period of time, that would be a reason for reducing the sentence to a lower point within the range – perhaps 9 or 10 years.  Similarly, within the lower range of seriousness, if the provocation, although very high, took place over a short period, that could be a reason to increase the starting point higher up the range.

d) In addition, the court will move from the starting point (reached by considering the level of provocation and the length of time over which it has taken place) by reference to any aggravating and mitigating factors in the case (see paragraphs 57 and 58 below).

e) It is the view of the Panel that most offences of manslaughter by provocation, whether or not in a domestic context, will fall into the medium and low ranges of seriousness.

56. A Court will first identify the range by reference to the level of provocation.  It will then identify the starting point within the range by reference to the period of time over which the provocation took place.

Most serious offences

Principal Features	Sentencing Range	Starting Point
A low level of provocation, occurring over a short time	9 – 15 years	12 years

Medium range of seriousness

Principal Features	Sentencing Range	Starting Point
A substantial degree of provocation, over a significant period	4 – 9 years	6 years

Low range of seriousness

Principal Features	Sentencing Range	Starting Point
A very high degree of provocation, over a prolonged period	If custody is necessary, up to 4 years, but not normally exceeding 3	2 years

···

57. The aggravating features identified by the Panel as relevant to the offence of manslaughter by provocation are:

¨            concealment or attempts to dispose of evidence

¨            dismemberment or mutilation of the body

¨            offence committed in the presence of a child/children

¨            there existed an intention to kill rather than to cause serious harm

58. Similarly, the mitigating factors identified are:

¨            The offender was acting to protect another

¨            Spontaneity and lack of pre-meditation

[35]      We have reviewed this sentence against the British appellate decisions referred to and against the proposed guideline.  We think that there can be no doubt that this case would come within the “most serious” category.  Frater J’s decision is within the sentencing range suggested by the sentencing panel.  Indeed, given the aggravating features present, it could be said that this sentence was well within range. 

[36]      We are not persuaded that this sentence was out of line with other authorities, whether they be New Zealand, Australian, or British.  We reject Mr Wade’s first submission.

[37]      At some point, it may be worth considering whether this court should attempt a similar exercise to that which the British are undertaking.  The effort may be premature, given that the future of provocation as a partial defence is under review.  The New Zealand Law Commission has recommended abolition of the partial defence of provocation, arguing instead that matters of provocation should be taken into account in the exercise of a sentencing discretion for murder: Some Criminal Defences with Particular Reference to Battered Defendants (NZLC R73 2001) at [120]. The Minister of Justice has subsequently asked the commission to do further work on this topic. A follow-up report is expected later this year. It may be preferable to await the outcome of that work before determining what steps, if any, should be taken in this court by way of guidance to sentencing judges.

Insufficient credit for preparedness to plead guilty to manslaughter

[38]      Mr Wade’s second point was that Mr Edwards had always been prepared to plead guilty to manslaughter.  Frater J rejected the relevance of such an intent on the basis of what this court said in R v Rongonui CA231/00 9 May 2001 at [27]:

Mr King suggested that no credit appeared to have been given for the fact that Ms Rongonui was always willing to plead guilty to manslaughter.  That in our view is not a factor which can be given much weight.  The Crown was entitled to seek a murder verdict and, in any event, Ms Rongonui had no rational basis on which she could resist a manslaughter conviction, as her stance at trial recognised.  What can be said is that if the Crown had accepted a plea of guilty to manslaughter, the expense and associated trauma of a trial would have been avoided.  But we do not consider that it would have been appropriate in the public interest for the Crown to have adopted that stance. 

[39]      We do not read that statement as meaning that credit can never be given for a preparedness to plead guilty to manslaughter in cases where the Crown is considered justified in pursuing a conviction for murder.  Guilty pleas never stand on their own.  They accompany an agreed statement of facts.  In this case, Mr Edwards may have been willing to plead guilty to manslaughter, but he never set forth in a definitive way exactly what he contended the facts of the matter to be.  His statement to the police was contradictory and contained many lies.  Had Mr Edwards, through his counsel, tabled a definitive account of what happened at the same time as indicating a preparedness to plead guilty to manslaughter and had the trial judge concluded that that version of events was probably true, then we could see no reason in principle why appropriate credit should not be given.  The Crown might still be justified in pursuing the prosecution for murder.  But if the ultimate outcome accords with what the defendant has said, due recognition should be given by way of a reduction of sentence. 

[40]      Another situation where it would be appropriate to give a discount for a willingness to plead guilty to manslaughter would be where a finding of self-defence was a possible outcome: Latham (supra) at 18. 

[41]      None of the circumstances where a credit would be appropriate applies here.  Self-defence was never open, as Mr Wade conceded.  Mr Edwards never provided a definitive account of what happened prior to trial.  Further, it is clear that Frater J considered Mr Edwards’s account to be only reasonably likely.  It was sufficiently cogent to raise a reasonable doubt with respect to provocation, with the consequence that the jury properly reduced murder to manslaughter.  But it seems that it would be going much too far to say that Mr Edwards’s trial account was probably true.  In those circumstances, we agree with Frater J’s conclusion that no reduction in sentence was justified on account of Mr Edwards’s preparedness to plead guilty to manslaughter.

Relevance of the severity of the attack

[42]      Mr Wade’s final point was that Frater J had erred in regarding the degree of violence (in particular, as to the number of blows struck) as an aggravating feature.  Mr Wade’s argument was that the jury have found that Mr McNee had provoked Mr Edwards and that the provocation was such as to have caused Mr Edwards to lose self-control.  Mr Wade said that at trial he had not relied on any special characteristics: therefore, the jury must have considered the provocation to have been sufficient to have deprived a person having an ordinary power of self-control of that power of self-control. 

[43]      We pointed out to Mr Wade that, were his argument correct, it would logically lead to similar sentences in every case.  The degree and duration of provocation would be irrelevant.  So too would be the degree of violence employed.  Logically the only distinguishing feature in sentence would be circumstances personal to the offender.  Mr Wade, on reflection, accepted that was the logical result of his argument, for which he cited no authority.  We are not surprised by the lack of authority: Mr Wade’s submission is quite contrary to the courts’ approach in sentencing in provocation cases, both in this country and overseas.  We could not countenance the acceptance of such a proposition. 

Result

[44]      We are not persuaded by any of Mr Wade’s submissions, while acknowledging the attractive way in which he presented them.  We dismiss the appeal. 

Solicitors:
Crown Law Office, Wellington