R v KNOX (SENTENCING NOTES) [2016] NZHC 3136

R v KNOX (SENTENCING NOTES) [2016] NZHC 3136 [16 December 2016]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS, INCLUDING THE RESULT (EXCEPT THEFACT THAT A WOMAN WAS SENTENCED HAVING PLEAD GUILTY TOTHE MURDER OF A 20 YEAR OLD VICTIM) UNTIL FINAL DISPOSITIONOF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGESTPERMITTEDIN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYCRI-2016-006-000512[2016] NZHC 3136THE QUEENvDONELLA MARIE KNOXCounsel: M A OʼDonoghue for CrownS J Shamy for PrisonerSentencing: 16 December 2016SENTENCING NOTES OF WILLIAMS J[1] Ms Knox, on 16 May this year you killed your daughter Ruby who was20 years old at the time. You did this by administering 20 0.5mg Risperidone tabletsto sedate her. When she was sedated, you placed both hands over her mouth and noseto prevent her from breathing and then you held your hands there until breathingceased. You then went to the Blenheim Police Station and gave a full confession.[2] Following a sentence indication you pleaded guilty to murder and it is my taskto impose the sentence of this Court upon you.[3] The law places the highest value on human life. That's why it imposes thehighest penalty known to law – life imprisonment – where a life has been intentionallytaken, unless that is, it would be manifestly unjust to impose that penalty. Thepresumption in favour of a life sentence for murder is very strong indeed in our law.The sanctity of human life, and therefore the gravity of this particular offence and thenecessary culpability of an intentional killer, means that the overriding value insentencing will almost always be to denounce the offence and to deter others fromsimilar offending.[4] Ruby was severely disabled, as you know and as I'm going to outline furtheron in these notes. What's important to note at this stage is that her disability in no wayreduces the value of her life.1 I must be careful to uphold the rights of the weak, thevulnerable and the disabled. The law cannot be seen somehow to treat the life of aperson with profound disabilities as any less valuable than that of anybody else.[5] So the framers of the law intended exceptions to the penalty of lifeimprisonment for murder to be rare indeed. But all relevant circumstances (both yoursMs Knox, and those of the offending itself on that day of 16 of May this year) have tobe taken into account2 when I determine whether a life sentence in your case would bemanifestly unjust.[6] In general, the factors that provoke a person into loss of self control will berelevant in considering whether life imprisonment is manifestly unjust. These mightinclude the nature, duration, gravity and timing of the provocation; the timing andproportionality of your response; whether the response was caused by theprovocation,3 as well as factors such as your psychological state and functioning, andyour personal or psychological history.[7] Here Ms Knox in short, I must look at all of the factors in your case todetermine whether the presumptive penalty of a life sentence would be so clearlyinappropriate for you to be called manifestly unjust. And if I reach that point, I must1 R v Albury-Thomson (1998) 16 CRNZ 79 (CA) at 85.2 R v Cunnard [2014] NZCA 138 at [15].3 Hamidzadeh v R at [2012] NZCA 550, [2013] 1 NZLR 369 at [62].then decide what a finite sentence would be, balancing as Mr O'Donoghue said, thesanctity of human life and the particular circumstances of your offence, and you, theoffender.FactsBackground[8] So I'm going to start by outlining some of the facts. First, some of the historyof yourself and Ruby before moving to the months, days and weeks that led to herkilling. So let's start with the beginning.[9] Ruby was severely disabled her whole life. Dr Shapcott who provided astatement identified the beginning of Ruby's problems as severe autism spectrumdisorder (that meant she had no speech facility, she could not communicate exceptindirectly and involuntarily in fact through her behaviour; and she had chronicbehavioural difficulties including over-the-top aggression, a propensity to self harm aswell as harming others; and of course she had no ability to co-operate with medicalexaminations). Perhaps most significant of all she had no ability to empathise. Shelived almost entirely within her own shell. She also suffered from severe intellectualdisability (a condition separate from her autism), chronic constipation, spina bifida,complications relating to spinal rod surgery undertaken when she was 13, gastro-oesophageal reflux, seasonal asthma and rhinitis, a history of anal fissures (related tothe chronic constipation), haemorrhoids and incontinence, previous menstrualdifficulties, and hip pain. Despite the extensive assessment and investigations, a clearoverall diagnosis for Ruby was never fully established.[10] Ruby's problems began early, and you reported that you knew something waswrong really from the outset. Within her first year she presented as a "floppy baby"with poor muscle tone. She had repeated chest infections and febrile convulsions aswell. She was assessed by paediatric specialists at the age of one. And at 18 months,she presented with global development delay and regression in language developmentwhich progressed to a failure to acquire any language or speech. From two, she wasrepeatedly tested for epilepsy, but the diagnosis was eventually discounted in 2006.[11] From two, Ruby exhibited what was called "complex behaviour disturbance",characterised by increased physical activity and a lack of social awareness. She wouldpull hair; head butt and scratch other children. She would attack animals and you. Isaw these things for myself on the 20/20 documentaries that were provided to me forviewing by legal counsel. In a sense I met Ruby as a small child and then as an olderadolescent. Anyway you said, and it's obvious that this was the case, Ruby had "noappreciation of her aggressive behaviour or the hurt or fear that she inflicted onothers." She meant no-one any harm. Her behaviour was, in a sense, entirely innocent.She frequently banged her head against walls or windows, and cracked doors andbroke windows. Safety glass had to be installed in your home to reduce the risk ofserious injury to her. And finally at the age of six, Ruby was diagnosed with AutisticSpectrum Disorder.[12] You did report to Dr Monasterio that when Ruby was five you consideredkilling yourself and Ruby by driving the both of you off a cliff. You felt hopeless andhelpless about Ruby's deteriorating health and suffering, and the lack of support andsocial isolation that comes with rearing a child with Ruby's difficulties. You disclosedthese thoughts to the 20/20 documentary that I viewed. You said to Dr Monasteriothat the suicidal thoughts in fact stopped when the programme was aired, and peoplecame to rally around you.[13] There was more. Ruby had severe constipation from the age of 18 months,leading to multiple hospital admissions for treatment of a condition called fecalimpaction. This was difficult to treat and of course it exacerbated her already highbehavioural disturbances. Ruby had to be tied to the toilet for several hours to achievebowel motion; that in itself was a difficult process to maintain, and she frequently,understandably, soiled herself. She eventually had a surgical procedure when she was14, which involved making a small opening in her lower abdomen (called a stoma),which was utilised to flush a salt solution into her colon to produce bowel movements.The flushing had to be performed every two days. It was a difficult and timeconsuming process because of Ruby's unsettled behaviour. There were alsodifficulties and infections arising from this particular problem which requiredhospitalisation as a result.[14] All these problems increased as Ruby grew older, increasingly tall, strong andheavy. From when Ruby was seven, you were convinced that she suffered fromchronic pain reflected in what you saw as sharp behavioural changes. But you haddifficulty convincing the medical team of this. When she was around 11 you movedto Nelson to try get her better support. The pain was eventually attributed to a spinaldeformity or scoliosis, and surgically treated as I've said, when she was 13 with theinsertion of a spinal rod. This difficult procedure resulted itself in complications andrequired three months of rehabilitation in hospital. But, it alleviated the paineventually and resulted in increased functioning and much fewer periods of violentbehaviour. It helped immensely. This meant that Ruby was able to manage at schooland with caregivers, allowing you periods of respite, and might I say, normality.[15] Throughout this time, you were constantly seeking answers to the challengesof Ruby's conditions and doing your best to care for her. Dr Shapcott (who was yourGP in 1996-97 and again in 2015-16) says you were highly concerned about Ruby'swelfare. Caring for her was a major challenge, the doctor said. You took her to manyGP appointments and hospital admissions, you cared for her at home, you wereinvolved in her schooling, and struggled to find suitable accommodation for both ofyou. You most certainly did not want Ruby to be institutionalised.[16] Dr Foley was both your and Ruby's GP until you shifted to Nelson in 2007.He says he consulted with you on more than 150 occasions. He got to know you well,and he was in his words "privy to the chronic and exhausting issues you faced and thefrustration you both experienced." – both you and Ruby he means. Dr Foley says thatRuby was always large and strong, weighing on average twice as much as a child ofsimilar age. Controlling her during outbursts and attacks was, he said, "difficult,stressful and physically dangerous".[17] Dr Foley said he was always "immensely impressed" with your ability to carefor Ruby. You always attended appointments prepared with background informationof additional support and treatment options that you wanted to explore. You were astrong and caring mother, he said, and a constant advocate for Ruby. Ruby didn't mixwell with other children, understandably, and because of her thoughtless aggression,she was unable to play with them without being carefully supervised. You couldn'tmaintain normal social relationships because of Ruby's behaviour as you were seenby others as a threat to their children or even to themselves.[18] Throughout this time, the common theme and comments from all who knewyou and Ruby that I have seen, whether they knew you professionally or personally,was that you loved and cared for Ruby constantly, diligently, unselfishly andunconditionally. You were her tireless advocate with health authorities and healthprofessionals. You simply refused to give up and you refused to take no for an answer.You were, it must be said, supported by authorities with respite care and constantengagement from specialists and team of specialists and multiple general practitioners.But it must be said the burden of Ruby's care lay with you, a burden you acceptedwillingly.[19] That's the long background. I now want to talk about the last six months.Last six months[20] By the time Ruby attained the age of 20, she was large, tall and strong. Herfunctioning, it was said, deteriorated and she reverted to violent and disruptivebehaviours. This meant that Ruby could not attend school nor were respite workersalways able to care for her. She was just too big a handful. She also presented withbroken sleep and increased physical activity throughout the night – a reality of coursethat impacted upon your sleep. You took Ruby to the emergency department at WairauHospital 10 times between February and May this year. Your view was that Ruby wasin pain though she could not of course communicate that except through her behaviour.The medical team disagreed with you at first, and said that Ruby had behaviouralproblems that needed to be treated with medication.[21] During the six months prior to Ruby's death, you felt increasingly desperateand frustrated. You felt that the medical fraternity had brushed you off. I hasten toadd these are your feelings. Whether that's objectively true is a whole other question,but I'm reflecting your feelings for present purposes. The paediatric team withdrewbecause Ruby had turned 20, and this indicated to you that there was nothing furtherthey could offer Ruby, at least that's what you said.[22] Dr Shapcott notes that in February 2016, you took Ruby to Starship Hospitalin Auckland for a review of her posterior spinal fusion. You communicated to theorthopaedic surgeon that you felt Ruby was in a lot of pain. The specialist agreed thatRuby was in pain, but, without arranging further investigation, concluded that it wasnot coming from her back. The specialist wrote a letter to the general physicians atWairau Hospital requesting a general medical review. This was refused on the groundsthat she had seen her paediatrician in Nelson six weeks previously, and was due to seehim again in April.[23] Dr Shapcott says this was unfortunate because the Nelson paediatrician wasseeking to transfer Ruby's case fully to Marlborough (as she was 20 and no longerliving in Nelson). Dr Shapcott says that this would have been an appropriateopportunity to transfer Ruby's specialist care to what she described as a sympatheticspecialist who could co-ordinate her needs. This opportunity, it seems, was lost.[24] Subsequently, there were attempts to ascertain the potential causes of this painthat was there but undiagnosed. Ruby was referred to Dr Secker, the surgeon who hadcreated the stoma, and a gynaecologist, Dr Brown. It was Dr Brown who noted that"Donella today is tearful and completely stressed out". The two doctors examinedRuby under general anaesthetic on 27 April. They found nothing to explain the pain.[25] You took Ruby back to the emergency department on 9 May. The medicalrecords record a behavioural crisis "possibly related to back pain for a migrated spinalrod". They note that you felt that Ruby was displaying unusual behaviour, indicating,in your mind, pain. You were concerned that you were so stressed that you may harmher. A CT scan was done and then sent to Wellington for further interpretation. At ameeting on 12 May, Dr La Varis explained that although the CT scan had shown somemovement of the rod in Ruby's back, it was still to be determined whether that wasthe cause of the pain. She also explained that none of the medical staff had observedRuby being violent or showing any bad behaviours or facial expressions that wouldsuggest she was in fact in pain.[26] You were relieved that a physical basis for the pain had been identified, butalso distressed, because, you say, you were told there was just no additional treatmentavailable to relieve the pain.[27] At the meeting, you explained to hospital staff that you were taking Rubyhome; that this would help you both sleep better – Ruby wasn't sleeping well at thehospital because of the nature of the environment; and you were taking her home alsobecause you were not convinced that there was really anything to be gained by staying.[28] Before you left, Dr La Varis asked if there was any chance you would do Rubyany harm and you said no. Ms O'Neal, a hospital social worker, walked to the carwith you, and you again expressed that you were grateful about the scan. She calledyou the next day and you said to her "You're just one of them. I don't know who totrust, I'm done with talking, I don't need any help, we are fine, thank you." and youhung up.[29] Then on 16 May – that fateful day, you received a copy of a letter from theorthopaedic surgeon, Dr Palmer. The thrust of it was that the CT scan had disclosed"no obvious reason for severe pain." A second opinion was sought from the surgeonwho performed the rod insertion procedure, but the letter ended with a note of caution,Dr Palmer wrote "surgery will not be easy and there has got to be a reason to do it."[30] You say you took this to mean that further surgical assistance for Ruby wasunlikely.[31] It seems this letter was a trigger for your decision to take Ruby's life. You toldthe Probation Officer that when you read the letter a feeling came upon you and youthought to yourself "This has to stop now."[32] At about 1pm on that day you sedated Ruby and suffocated her until she died.[33] Now before I turn to the sentence calculation, there are two aspects of the factsthat I want to particularly to address. These are the nature of your relationship withRuby over the 20 years of her life, and your perception at the time of her death of theavailable options for her treatment and care. These factors are very relevant to yourmental state at the time of the offending and therefore relevant in law. Although DrMonasterio also provided information on your troubled upbringing and mental healthmore generally, these are not as pertinent, as my focus, as I have said, is on your mentalstate on 16 May this year. So that's where I'll focus.[34] I want to begin with the nature of your relationship with Ruby.Nature of your relationship with Ruby[35] Dr Foley, who as I have said, was your GP, notes that Ruby "would frequentlyattack [you]". He says that he witnessed this on several occasions, and never saw yourespond with violence – across 150 consultations. Rather, he said, you appeared tounderstand Ruby and you were constantly concerned and stressed by her unpredictableviolent outbursts.[36] Dr Foley describes you as "very affectionate and caring towards Ruby". Hesaid he never saw Ruby reciprocate your affection and care. He said your relationshipwith Ruby was akin to an abusive partner relationship where your care was met withrepeated violence. You told Dr Foley you tolerated this because you knew Ruby didnot understand, appreciate or even intend to cause the harm that she did. Dr Foleysaid, "My vivid memories of [you Ms Knox] were of a mother who cared for andprotected her daughter but was constantly physically and mentally exhausted."[37] Dr Monasterio interviewed you, and a number of others about this case andreviewed 5,000 pages of medical, police and family background, recorded thatcollateral sources indicate that you "remained a devoted and caring parent despitelimited supports, recurrent and severe aggression from Ruby, financial constraints andthe absence of a clear diagnosis and treatment approach". The relationship betweenyou and Ruby, he said, was "unusually intense and challenging as it dominated[your] life, was associated with violent behaviours from Ruby, and mostly notaccompanied by emotional reciprocity."[38] I think Dr Foley was right to call your relationship abusive. Not abusive in theusual sense, but abusive because you were tied emotionally to, indeed completelydominated by, an adult-child who could not reciprocate your love, who tested yourtolerance to breaking point with violence towards you and others, with widerbehavioural difficulties that restricted social contact with others, as well as restrictingany career or wider life ambitions you might have had, and with almost constantmedical and psychological issues requiring you to deal with medical services. Asalmost all who have known you have said, being Ruby's mum was exhausting in everypossible sense.[39] That's the first important aspect I wanted to cover.Your perception of available options[40] The second is your perception of available options on 16 May. That is the daywhen you received Dr Palmer's letter. This aspect, the availability of options was inturn informed both by the 20 years you spent caring for Ruby and by the events in themonths and days leading up to you taking up her life.[41] You reported to Dr Monasterio that the past 20 years of your life had beenentirely dominated by caring for Ruby. As well as having to deal with complexmedical issues and challenging behaviours, you complained that Ruby didn't receiveintegrated health care or adequate treatment. You saw more than 30 specialists acrossfour District Health Boards. You were particularly distressed by the absence of a cleardiagnosis and a lack of integrated care. And you constantly reflected that perception.[42] You travelled around New Zealand and overseas, seeking help for Ruby andanswers for her condition.[43] A referral letter from Dr Cameron at the Wairau Community Clinic to theNelson Paediatric Unit dated 29 February this year requested an urgent appointment,noting that you were "at wit's end", he said, with "very frequent presentations" to theemergency department, "demanding that something must be done" and that"combinations of medications were not helping". The letter noted Ruby's dental pain,stoma problems, recurrent infections and hip and groin pain. It also noted that youbecame angry and upset when it was put to you that you were just emotionallydistressed and not thinking straight, and that Ruby should in fact be considered forresidential care.[44] Dr Monasterio reported that by the time of the offending on the 16th, you saidto him that you had suffered for months of sleep disturbance, anxiety with panicattacks and mounting frustration and distress, in addition to coping with what you feltwere limited supports. You were increasingly socially isolated and financiallystruggling. You formed the view that "there would be no relief to Ruby's distress andsuffering, and that your options were essentially exhausted." You said you saw nohope for improvement.[45] Dr Foley said that "providing the constant care required for Ruby wasextremely difficult as there were few carers who could provide sufficiently skilledsupport." You often said to him, he said, that you could not get sufficient respite care.You got three hours a day, according to him, in the context of Ruby needing 24 hoursupervision. You also did not have a partner to share the load with you. So he saidyou were "frequently and chronically exhausted".[46] Your friend, Leslie Henderson-Craig, reflects some of these ideas but in themore intimate language of a friend and advocate. She also had a disabled daughter.She confirmed that you felt totally helpless during this time and let down by the systemand had felt this way for some time. She said that in the two months or so prior toRuby's death, you reported significant changes in her behaviour. And that you knewfrom previous experience that this meant pain. That, Ms Henderson-Craig said, iswhat led to the number of appointments and examinations that I've talked about.[47] Ms Henderson-Craig said that you and Ruby weren't sleeping. Your GP wasin Picton and you were in Blenheim, and you felt that no-one local was taking yourconcerns seriously or urgently, and so you've taken Ruby to the emergency departmenton a number of occasions.[48] She said that you had fought harder than anyone I know for a good life for yourchild and you fought alone. You put aside your own needs to provide all you couldfor Ruby, in her words. She said you asked for help from everyone you could thinkof. She said "this is a tragic end that in no way reflects the care, strength and deeplove of a mother for her daughter." She says "I believe both Ruby and [you] werefailed systemically by [and these are her words], a narrow minded, poorly trained bodyof people whose jobs start at 8am and finish at 5pm who took a step away when theyshould have taken a step closer". That's her view.[49] Your brother Daniel Knox, was also asked to comment on your mental andemotional state the last two times he saw you and Ruby together. He says the twothemes that you discussed were Ruby's highly agitated state, and your anguish atRuby's poor medical treatment. He noted that on both occasions, you began to crywhen discussing Ruby's state. He said it was out of the ordinary for you to cry in frontof him, and he took it as a concrete sign that you were desperate. He said the thing heremembers most acutely from this discussion was your sense of sadness at Ruby's painand agitation and your inability to diminish it. He said "It felt like a cruel torment for[you] as a loving mum to see her daughter suffering."[50] Daniel said at the time you felt that your concerns were "being ignored,dismissed as a hysterical mother, or deemed too hard to solve." You were trying tofind a new GP which added to the stress, cost and confusion, he said. You felt thatthere was no consistency of care; that medications known to clash were oftenadministered; that no-one had a complete handle on the situation. When you broughtthis up, he said, you were dismissed as a meddler. Daniel said that your concerns, andthese were his words "were lucid and consistent, and extremely reminiscent of thetime when Ruby had previously been in an agitated state due to pain, before her backsurgery as an adolescent". He said the difference this time seemed to be a completefailure of care by medical professionals.[51] Daniel ends by saying that the emotions are difficult to convey and process,but, he said, one thing that he never questioned was your fierce love and devotion forRuby.[52] Now these were the perspectives of those who were close to you in family orfriendship terms, with your situation and of at least some of the health professionalswho helped you over the years.[53] But health service and support providers give a different perspective on thistime. Pamela Maxted, a needs assessor/service co-ordinator for an organisation calledSupport Works says that in fact you received 252 days a year of respite care and thatyou could use whoever you wanted as a carer. Ms Maxted says this is a very highallocation, in fact higher than anyone else on their books. According to their records,you "would appear to be getting regular and sufficient breaks." You also had ahousework allocation, but you cancelled this several months prior to May, saying thatthe organised times did not suit you. Ms Maxted tried to get the housework reinstated,but when they phoned to make an appointment, she said you would not commit to atime.[54] Ms Maxted says that "[you] unfortunately [were] one that dwelled on the pastand what [you weren't] getting, [you] always felt [you weren't] being supported whenin reality [you were] getting more than many of [their] clients in similar situations."Ms Maxted also discussed the transition to adult services as a result of Ruby turning20 and she noted that it is a hard time for parents, as the doctors they are familiar withare no longer there and it can be perceived that people no longer want to help. But MsMaxted said, the reality is this move had to happen at some point.[55] Ms Maxted said "I believe [you] just wanted answers but every test that wasdone would come back negative and as a parent this was probably just not the resultthat [you] would want."[56] Ms Maxted says that Ruby was in fact offered a residential place at TroloveHouse in Nelson more than once in 2009 for respite. But she said you did not acceptadditional residential respite options because it was clear this was not how you wishedto be supported. You said to her that medical staff had been suggesting to you thatRuby be put in care, and you were angry that this was raised as a solution at all in yourdiscussion with support organisations.[57] In summary then, there are medical professional and officials who deny thatthere was insufficient support for you and Ruby and they deny that you were justifiedin feeling painted into the corner that you claim you were painted into by the 16th ofMay 2016. In fact, they say support for you was unprecedented in the district and thatthey were doing all they could with the resources they had to support you and Ruby.It is important that I note this aspect to reflect a properly balanced view of matters.There are two sides to this narrative: one of entrapment by circumstances and the lossof alternatives; the other of reasonable support within the resources available to thesystem and ongoing attempts to provide alternatives in a most difficult situation forall.[58] The important point as far as I'm concerned, is that it's not necessary for me toresolve this conflict in order to determine the justice or otherwise of a life sentence orof your final sentence. It is not my task to judge the support that you received fromthe public health system. That may be for another forum and another time. You seeMs Knox my task is to judge you. It is enough for me to accept, as I do, that yourfeeling that the system had constantly failed you was long held, genuine and deeplyfelt. In your mind, Ruby's unresolved pain and the burden that placed on you in termsof managing her going forward, left you with no viable alternative. I think you feltthat no-one in authority really understood either Ruby's or your suffering in thisregard, and that was the problem. The fact that your feelings about the inadequaciesof the system were shared to some extent by others both medical professionals and laypeople who had been on this journey with you is relevant to me but only in the sensethat it makes your own belief more plausible and therefore less likely to be self-serving. Beyond that, the right and wrong of it, is irrelevant to me.Law[59] Well Ms Knox, I have traversed your and Ruby's backgrounds and thebackground to Ruby's death and your part in it in great detail, and I've done that onpurpose as an attempt within the paper I have before me, and there's been a lot of it,to provide a fully dimensioned picture of your offence and its background. In goingthrough this exercise, I have become very sure of one thing: to sentence you to lifeimprisonment for Ruby's murder would clearly be inappropriate, or, in the words ofthe law, manifestly unjust.[60] Counsel have pointed me to a number of cases where the manifest injusticestandard has been met before. It's not my practice Ms Knox to engage in lengthydiscussions of the case law in a sentencing exercise which I regard to be primarily aconversation between you and I. But this is a particular case and I'm going to have totalk about some law in more detail than I would usually and I ask for your patience.[61] These cases fall into two categories which can be broadly described as mercykillings and murders by a person who has suffered lengthy abuse. The first category– mercy killings, is exemplified by the case of R v Law, where a 77 year old man killedhis wife, who suffered from Alzheimers, while she slept.4 It transpired the couple hadmade a pact that if either of them developed Alzheimers, one would take the otherperson's life. The husband was sentenced to 18 months' imprisonment, despite thefact that the offence was murder, with leave to apply for home detention. Finitesentences have also been imposed on offenders who kill their intimate partnerfollowing a prolonged history of abuse.5 I won't go through those but they're well-known. Finally, although the charge against you is murder, counsel have pointed tothe case of R v Albury-Thomson, where the defence of provocation was successfullyargued at trial, leading to a manslaughter conviction.6 What makes this relevant is thefacts underlying it and later changes to the law. So I'm going to return to this caseshortly. I simply ask you for patience while I have a discussion primarily with thelawyers.[62] Yours is not a standard mercy killing case (if there is such a thing), nor is it aparent/child equivalent of the standard abusive relationship case (if there is such athing). Ms Knox your case is more complex than that. It has strong elements of bothcategories interwoven into a single 20 year narrative. Perhaps if relevant facts wereable to be disentangled and isolated into one or other of these two categories, neithernarrative would be sufficient alone to reach the standard of manifest injustice asrequired by law; but your case Ms Knox, reminds me that the dark circumstances thatlead to homicide reflect the infinite variety of human experience, and my task is notto search for a deserving label, like mercy killing or abusive relationship, but to testthe facts as they are provided to me against the standard of manifest injustice.4 R v Law (2002) 19 CRNZ 500 (HC).5 See, for example, R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775 and R v Rihia [2012] NZHC2720.6 R v Albury-Thomson, above n 1.[63] In short Ms Knox, dumbing this story down into a previously coined label doesnot necessarily help me come to a just answer here. Because your circumstances areat once complex and singular.[64] The case of Albury-Thomson is one which has a number of elements incommon with your situation. In that case, Ms Albury-Thomson killed her 17 year olddaughter, who was also, it transpires, autistic – although higher functioning than Ruby,at least by my reading of the law report. The daughter had limited communication,she chanted loudly at night, frequently ripped clothes, bedding and furniture coversand the like. She deliberately wet herself and she constantly displayed inappropriatesexual behaviour in public. She lived in a care facility for 36-38 weeks of the year,but she stayed with her mother during school holidays, and had been with her for twoweeks at the time Ms Albury-Thomson killed her. She was supposed to have respitecare for two or three days a week during these holiday breaks, but this was terminatedafter the first week because of the daughter's disruptive and destructive behaviour. MsAlbury-Thomson became sleep deprived and ran out of food and bedding. She soughthelp, and obtained some day care and also food. On the night of the homicide, thedaughter was chanting in her bed and Ms Albury-Thomson asked her to stop. Thedaughter just laughed. The mother decided to kill her, and eventually did so bystrangling her to death.[65] In that case, the jury returned a verdict of manslaughter on the basis of thepartial defence of provocation. This partial defence has now been abolished. TheHigh Court on the count of manslaughter imposed a finite sentence of four years.Ms Albury-Thomson appealed, and the Court of Appeal reduced the sentence fromfour years to 18 months.[66] Four years later ironically, given that it was a four year sentence, when heintroduced the bill into Parliament that brought more flexibility to sentencing inmurder cases, the very flexibility that I'm dealing with here today, the Minister ofJustice specifically referred to the Albury-Thomson case as an example of where amanslaughter verdict in preference to murder verdict may just have been the result ofthe jury choosing to compensate for the harsh inflexibility of the old mandatory lifesentence regime.7 In other words, the circumstances of that case – and by extension,your case Ms Knox – are exactly the kind of circumstances that the "manifestly unjust"option now in place was designed to address. In addition, the "conduct of the victim"is a mitigating factor in the Sentencing Act (s 9(2)(c)), leaving some room forprovocation type factors to be relevant in sentencing.8[67] Now Mr O'Donoghue argues that your case is different to the Albury-Thomsoncase on the basis that in Albury-Thomson the mother was placed in a situation whererespite care was just straight unavailable through no fault of her own, and there didnot appear to be any other means of support for her in place. In other words he argued,she had no options at all. The Crown says that you were different. You did have otheroptions. I don't agree with that approach. In my view, it is enough that the Crownaccepts that you had diminished responsibility at the time you killed Ruby. The Crownaccepts that you are not to be held up to the standard of a reasonable person. This isnot an objective exercise, it's a subjective one, and it's your subjective view thatultimately counts.[68] Therefore, what matters is that your belief in the lack of options was genuine,even if there was evidence that it was wrong. And I have no doubt that your beliefwas genuine, no-one does. The views of some health professionals, and your friendsand family, which I have traversed, are relevant evidence showing the genuineness ofthat belief.[69] Accordingly, I am satisfied that a sentence of life imprisonment would bemanifestly unjust. That requires me to address the finite sentence.Finite sentence[70] There is no doubt that a term of imprisonment is required to mark the fact thatyou took a vulnerable life whatever the circumstances and provocations. I turn to that7 (14 August 2001) 594 NZPD 10910-10911. The previous legislation, the Criminal Justice Act1985, required a mandatory imposition of life imprisonment.8 The Select Committee in its report on the Crimes (Provocation Repeal) Amendment Bill 2009 alsocommented that the "manifestly unjust" threshold "is flexible enough to capture appropriate casesin which provocation-related factors are present." And the Court of Appeal in Hamizedah, aboven 1, confirmed that provocation-type factors are relevant in sentencing for murder.sentence now. I agree and affirm that the intentional taking of a life is to be markedwith a prison sentence that recognises the value of human life and particularly the livesof the most vulnerable. They are the ones the law must protect most of all. Humanlife is precious, and Mr O'Donoghue is right that it's my task to balance thepreciousness of that life with the circumstances of its taking – an unenviable task I'msure you'll agree. But while human life is precious it ought not to blind us to the widercircumstances of the particular case before the Court. And the circumstances of thiscase, in my view, are singular indeed. Albury-Thomson comes close to these facts, buteven that case is not on the same level as your case, in my view, Ms Knox. You hadfull-time solo care for 20 years. You battled with the system you believed fell shortfor 20 years. You were sleep deprived for much of the last six months before May2016. This, in my view, is a once in a generation case.[71] The Crown submits that the appropriate finite sentence would be eight to10 years. The Crown points to two abusive relationship cases9 and one case ofepisodic psychiatric illness10 in support of that conclusion. Your counsel by contrastsuggests that a sentence in a band between two to six years is more appropriate, relyingon the earlier mercy killing cases such as Law that I have mentioned.11[72] For the most part and with the exception of Law, the cases in which there werelower imprisonment levels were often manslaughter cases, and of course this is amurder case, and this must be marked accordingly. But I do not think I am bound toan eight to 10 year band on these facts. Rather, it is my task to assess the complexfacts of your case on their own merits. This is a spectrum of points, not a series of lessfinely calibrated silos into which I must place your case.[73] As I have said, this is not a classic mercy killing case in which the sole reasonfor ending a person's life was that it was the only means of ending their suffering.There is, as I have said, an element of this in terms of your perceptions and thecircumstances that caused you to do what you did but it can't be said that the pressureon you was as great as it was in some of the earlier cases referred to by counsel.9 R v Wihongi, above n 5, and R v Rihia, above n 5.10 R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011.11 R v Albury-Thomson, above n 1, and R v Law, above n 4.[74] As I have said also, there is a strong element of psychological harm from theunavoidable circumstances of what I call, your abusive relationship with Ruby, and itis in fact the combination of these two elements in your case that provides a properand fair measure of your culpability overall.[75] Now, in the Albury-Thomson case as I've said, a sentence of four years wasreplaced on appeal by a sentence of 18 months. That sentence rightly reflected thefact that was a manslaughter verdict case. Whatever the motivation for that verdict, itmust be respected and it is only right that I impose a longer sentence in this case toreflect the conviction for murder than in that case because in this case you havepleaded guilty to intentionally taking Ruby's life.[76] Ms Knox, as I have said there is no doubt that you genuinely believed that therewas no other option but to end Ruby's life. You struggled for 20 years to seek medicalhelp for Ruby. While you had some successes in alleviating her pain, you had lots offailures and, as the doctors have reflected, she was never fully diagnosed. In the lastsix months of her life, she appeared to be in increased pain, and medical professionalsoffered no clear answers, and perhaps on reading that letter of the 16th, you felt theycould offer no clear answer. You were stressed, exhausted, and unable to cope.[77] There's a particular passage in the Albury-Thomson case which I think fits thiscase rather clearly. The Court of Appeal referred to the "hopelessness which musthave overtaken the appellant [Ms Albury-Thomson] as, constantly deprived of sleep,she contemplated the situation of having to cope" with both her daughter's presentstay with her and also "the repetition of future episodes stretching out as far as the eyecould see" when she came home.12 In your case, Ms Knox, you had primary care ofyour daughter not for intermittent periods but for her entire life, and her suffering andresultant unmanageable behaviour had no foreseeable resolution at all in your mind.The combination of those factors took an enormous toll on you, and this was of courseexacerbated by the particular hopelessness you felt after Ruby's most recent hospitaladmission.12 R v Albury-Thomson, above n 1 at 87.[78] For all of the factors discussed at length here, I consider an appropriate startingpoint is six years' imprisonment to acknowledge the intentional taking of a preciouslife balanced alongside your reduced culpability for the offence. I deduct eight monthsfor good character and for the minimal prospect of any further offending, and then 25per cent – that is 16 months, for your immediate acceptance of responsibility followedby your guilty plea.[79] Please stand Ms Knox.[80] Ms Knox, for the offence of the murder of Ruby Knox, I sentence you to fouryears' imprisonment.[81] Stand down please.Williams JSolicitors:Crown Solicitor's Office, Nelson for CrownBridgeside Chambers, Christchurch for Prisoner