R v SMITH [2021] NZCA 318

R v SMITH [2021] NZCA 318 [14 July 2021]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF THE PERSONDESCRIBED IN THIS JUDGMENT AS "P" PURSUANT TO S 202 OF THECRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF THE PERSON DESCRIBED IN THISJUDGMENT AS "L" AS ORDERED BY THE HIGH COURT.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA438/2019[2021] NZCA 318BETWEEN THE QUEENAppellantAND LORRAINE ANNE SMITHRespondentHearing: 24 June 2021Court: Collins, Thomas and Muir JJCounsel: M J Lillico and C Ure for AppellantC P Brosnahan and L A Scott for RespondentJudgment: 14 July 2021 at 3.00 pmJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of 12 years' imprisonment with an MPI of six years imposedin the High Court is quashed and substituted with a sentence of lifeimprisonment with an MPI of 10 years.C We make an order under s 202 of the Criminal Procedure Act 2011prohibiting publication of name, address, occupation or identifyingparticulars of the person described in this judgment as "P".____________________________________________________________________REASONS OF THE COURT(Given by Collins J)[1] After pleading guilty to a charge of having murdered her 13-year-oldgranddaughter, Ms Smith was sentenced by Cooke J in the High Court at Whanganuito 12 years' imprisonment with a requirement that she serve at least six years of thatsentence before she is considered eligible for parole (MPI).1 In sentencing Ms Smith,the Judge was satisfied that it would be manifestly unjust to sentence Ms Smith to lifeimprisonment.[2] In her appeal, the Solicitor-General contends the Judge made a significant errorin not upholding the presumption of life imprisonment set out in s 102(1) of theSentencing Act 2002, which states:102 Presumption in favour of life imprisonment for murder(1) An offender who is convicted of murder must be sentenced toimprisonment for life unless, given the circumstances of the offenceand the offender, a sentence of imprisonment for life would bemanifestly unjust.Summary of events[3] Ms Smith is now 61 years old. By any assessment she has had a very difficultlife, most of which she has devoted to selflessly caring and providing for her own twochildren and her three mokopuna. Despite her own limited resources and a profoundlack of support, Ms Smith consistently put aside her own needs to care for herdependents. Unfortunately, Ms Smith's efforts took an immense toll upon her ownmental health and wellbeing. She developed significant anxiety and depression.[4] On 15 March 2019, Ms Smith reached a tipping point. It would appear that acomment made by her 13-year-old granddaughter, Kalis, to the effect that Ms Smithnever did anything for Kalis was the final straw. Ms Smith told Kalis to accompany1 R v Smith [2019] NZHC 1910 [Sentencing notes].her to a sleepout at the back of her Whanganui property on the pretext that Kalisneeded to assist Ms Smith to shut the windows in the sleepout. In fact, Ms Smithasked Kalis to go to the sleepout because she did not want L, another of hergrandchildren to see what was about to happen. Ms Smith took with her a necktie thatwas lying on the kitchen table. When Kalis entered the sleepout Ms Smith pulledKalis's hoodie over her head, wrapped the tie around Kalis's neck and strangled her,by using her superior strength to pull as hard as she could until Kalis stoppedbreathing. Kalis fought back but was unable to prevent her grandmother from killingher. We have not seen the post-mortem report but Ms Scott, counsel for Ms Smith,accepted that the strangulation "must have taken minutes". Ms Smith said to the policethat she knew her granddaughter wasn't breathing because she placed her finger overher nose to check for signs of life.[5] After Kalis died, Ms Smith called her son and asked him to come to Ms Smith'shome, saying that he needed to call the police. She then took a significant quantity ofanti-depressant medication and drove to the hospital where she told staff, and later thepolice what she had done.Background[6] It is necessary to explain in more detail the background leading up to themurder of Kalis.[7] Ms Smith was born at Whanganui in 1959. She left school at 15 and workedfirst in a laundry and then in a clerical role at a factory. She also worked part-time ina dairy but for most of her life, Ms Smith has worked as a housekeeper, a nanny, ateacher aide and as a carer of young children.[8] Ms Smith never consumed illegal drugs, and apart from a few instances in herlate teens, she rarely consumed alcohol. Prior to the murder of Kalis, Ms Smith hadnever committed any criminal offence.[9] Ms Smith became pregnant with her first son, Adam, when she was 18. Herboyfriend ceased to play any significant role in her life leaving Ms Smith to bring upAdam on her own. Adam soon showed signs of behavioural problems. He wasassessed by paediatricians and was trialled on Ritalin for Attention DeficitHyperactivity Disorder (ADHD).[10] When she was 31 years old Ms Smith entered into another relationship. Sheagain became pregnant and gave birth to Jordan, her second son. The father of Jordanwalked away from the relationship, leaving Ms Smith as sole carer of her two children.By this time Adam was about 12 years old.[11] It soon became apparent Jordan suffered from major medical issues. Within afew months of his birth, Jordan was found to be effectively blind and that he had amajor brain malformation, which meant he was never able to function beyond theabilities of an 18 to 24-month-old child. Jordan was never able to walk or talk. He wasincontinent and developed intractable epilepsy and Addison's disease. From about theage of seven Jordan was fed by a gastrostomy tube directly into his stomach.[12] Ms Smith was the primary carer for Jordan until he was accepted into a carefacility in 2014 when he was 21 years of age. He passed away after Ms Smith wassentenced for the murder of Kalis.[13] The attention Ms Smith gave to Jordan appears to have caused Adam tobecome resentful. One of the psychiatric reports placed before us explains that whileMs Smith devoted her energies towards caring for Jordan, Adam "went entirely off therails, getting into crime and drugs, and later joined a gang. Ms Smith had difficultymanaging him and Jordan simultaneously. She had little support from [other membersof her family] ".[14] At about this time, Ms Smith entered into another relationship which lastedabout four years. There are suggestions in the psychiatrists' reports that Ms Smith wasthe victim of abuse during that relationship.[15] In his late teenage years, Adam entered into a dysfunctional relationship thatwas marred by methamphetamine use, alcohol abuse and crime. Adam's partner gavebirth to three children, P, L and Kalis.[16] In about 2003, Ms Smith agreed to care for P and L. At the time P was threeyears old and L about six weeks old. Ms Smith agreed to care for her twograndchildren because of the physical violence that Adam was inflicting upon hispartner. Ms Smith was very concerned about the safety of P and L and agreed to carefor them, even though she also had the responsibility of caring for Jordan.[17] Kalis was born on 16 May 2005 and was uplifted when she was five weeks oldand placed into foster care. When Kalis was five months old, Ms Smith agreed to alsocare for Kalis because no one else in the family stepped forward to acceptresponsibility for caring for Kalis.[18] By 2005 Ms Smith was the sole carer of her three grandchildren, who rangedfrom a few months to six years of age. Ms Smith also continued to care for herprofoundly disabled son, Jordan.[19] All three of Ms Smith's grandchildren suffered behavioural and psychologicalissues. P developed behavioural issues that required the assistance of the "Yes toYouth" organisation. In later years there was a degree of violence in the relationshipbetween P and Ms Smith. There are reports P punched Ms Smith and that, about threeweeks before Kalis was murdered, Ms Smith threw a frying pan containing hot oil atP. After that incident P left Ms Smith's home.[20] L was a particularly challenging child. When he was about four years old itwas realised that he had Autistic Spectrum Disorder and mental health issues. He isdescribed as being very intelligent but lacking an ability to connect with reality. Policebecame involved with L in 2015, when he was about 12 years old and becameparticularly violent at school. He was assigned a fulltime teacher aide but, despite theefforts of Ms Smith, L continued to exhibit serious behavioural problems. In 2018, Lappeared in the Youth Court charged with threatening to kill and possession of anoffensive weapon. L continued to exhibit disturbing behaviour when in late 2018,police were called to Ms Smith's home because L had become violent when his onlinegirlfriend told him she would no longer play an online game with him. L respondedby screaming and smashing his computer. A similar incident occurred in February2019 when L had a "major meltdown" and started throwing items about his room. Thepolice were again required to intervene to calm L down.[21] Kalis also exhibited some behavioural issues. When she was 11, she wascaught sending a photo of herself bathing to a boy she knew. The relationship betweenKalis and Ms Smith became problematic when Kalis resisted Ms Smith's efforts toimpose a level of discipline upon Kalis and when Kalis exhibited emotional andbehavioural difficulties, including threats of suicide.[22] Unsurprisingly, Ms Smith's own mental health began to suffer from the stressshe endured in caring for Jordan and her three grandchildren. Additionally, Adam'spersistent pattern of criminal offending and his violent outbursts towards Ms Smithand his children contributed to the deterioration in Ms Smith's health.[23] We have had the benefit of two comprehensive psychiatric reports, whichcarefully document Ms Smith's psychiatric history which dates back to 1977 when shetook two overdoses of medication in the context of workplace stress and relationshipissues. When Ms Smith was 40, she was prescribed medication in response to thedepression she was suffering from caring for Jordan and because of the breakdown ofthe relationship we have referred to at [14].[24] In 2013, Ms Smith sought help from her general practitioner. The records showthat she was feeling overwhelmed, tired, stressed and "crying at the drop of a hat".Her antidepressant medication was increased, and she sought counselling. Medicalrecords show that in June 2014 Ms Smith was reaching breaking point as she tried tomanage the stress of caring for Jordan and her three grandchildren. By that stage, eachof her grandchildren had been allocated to a social agency and Ms Smith made thedecision to place Jordan into permanent care.[25] In April 2017, Ms Smith was referred for further counselling assistance by hergeneral practitioner. She was described as struggling emotionally, particularly withKalis who had recently threatened suicide. In February 2019, one month before Kaliswas murdered, Ms Smith was seen by her general practitioner, who describedMs Smith as being "emotionally distraught and [in a] very low mood". The generalpractitioner recorded Ms Smith's behaviour was marked by "out of character anger".A depression assessment conducted by the general practitioner placed Ms Smith at thehigh end of the moderately severe range of depression. The general practitioner madea referral for further counselling and changed Ms Smith's antidepressant medicationto improve her sleep.[26] Since being sentenced to prison, Ms Smith's mental state has continued to beextremely fragile. Dr Davidson, a consultant psychiatrist, has provided us with a verythorough report in which she explains that Ms Smith has continued to suffer fromsignificant depression in prison and that she has on occasions expressed thoughts ofsuicide and made suicidal gestures. Dr Davidson explains that in addition to sufferingsignificant depression, Ms Smith has the symptoms of "carer burnout", a syndromewhich is beginning to gain recognition in psychiatric circles. According toDr Davidson, the enormity of the events of 15 March 2019 has "completelyoverwhelmed what little remained of [Ms Smith's] coping abilities" and that, the guiltshe suffers means that Ms Smith is "unable to process and integrate the offence intoher life ".The events of 15 March 2019[27] We have summarised at [4] the key events concerning the murder of Kalis. Inaddition to the matters that we have already described, the summary of facts, whichwas substantially based upon what Ms Smith told the police, explains that at about5.00 pm on 15 March Ms Smith went and picked Kalis up from a sports event. Whenthey got home Kalis and Ms Smith began arguing in Kalis' bedroom. According to L,he heard Kalis saying, "let go of me, stop pushing me down, I can't breathe I can'tbreathe" and that Ms Smith responded by saying, "[y]ou want to die anyway don'tyou." He heard Ms Smith telling Kalis to sit down. Kalis then went into the lounge.Ms Smith followed her and sat on the couch and started watching television.[28] After dinner another argument developed between Ms Smith and Kalis whenMs Smith tried to confiscate Kalis's cellphone. Kalis threatened to run away fromhome.[29] Soon after, Ms Smith told Kalis to help her collect washing from an outdoorclothesline and Ms Smith threatened to drag Kalis outside if she did not help her.[30] At some point, Kalis uttered the barb we have referred to at [4]. Unfortunately,we cannot determine exactly when Kalis made that comment.[31] After they gathered the washing, Ms Smith and Kalis went back inside wherethey continued to argue. At that point Ms Smith asked Kalis to help her close thewindows in the outdoor sleepout because that was where she intended to kill Kalis.Thereafter, Ms Smith murdered Kalis in the way we have described at [4].Sentencing decision[32] When sentencing Ms Smith, Cooke J referred to a detailed psychiatric reportprepared by Dr Short, a very thorough cultural report written by Ms Hemi and apre-sentence report. The Judge also referred to two victim impact statements fromMs Smith's sister and a cousin, who spoke of "a family who have suffered more thantheir fair share of tragedy, violence, drug addiction and mental disorders".2[33] After setting out the key facts taken from the summary of facts and the contentsof the reports we have referred to at [32], the Judge acknowledged that under s 102 ofthe Sentencing Act Ms Smith had to be sentenced to life imprisonment unless such asentence would be manifestly unjust. He recorded:3The threshold to displace the presumption of life imprisonment is a high oneand met only in exceptional cases. Previous cases where that standard hasbeen met have involved mercy killings, cases where the defendant is sufferingfrom posttraumatic stress disorder relating to family violence, where the[re] isa major psychotic illness, or the defendant is very young [34] The Judge then focused upon whether a sentence of life imprisonment wouldbe manifestly unjust, by first considering Ms Smith's circumstances. The Judgereferred to R v Rihia and R v Wihongi, in which finite sentences were imposed upondefendants who stabbed their partners to death in circumstances where the defendantshad been the victims of prolonged and significant emotional abuse inflicted by their2 Sentencing notes, above n 1, at [13].3 At [33]; footnotes omitted.partners.4 The Judge then summarised Ms Smith's circumstances in the followingway:5Here I accept that Ms Smith was suffering from severe emotional, physicaland mental exhaustion in the months leading up to the offending. Her mentalhealth had continued to deteriorate and she presented with symptoms of amoderately severe recurrent major depressive disorder. The psychiatric reportnotes the offending was triggered by longstanding, cumulative stress from herrole as [primary] carer for a profoundly disabled son and three grandchildrenwho suffered from significant mental health difficulties. Ms Smith waspreviously prosocial in her attitudes and does not consume alcohol or use illicitdrugs. She has no previous offences and the victim impact statements indicatethis offending was completely out of character. Up until the offending she hadappeared to be a committed grandmother who cared for her sons andgrandchildren despite their significant difficulties. She was overcome withremorse in interviews and suffers from profound grief and guilt for thecircumstances of her granddaughter's death. I consider the likelihood of herreoffending is low.[35] The Judge also considered the circumstances of Ms Smith's offending when hesaid:6There are countervailing considerations that I need to take into account.Ms Smith's mental health had not deteriorated to the extent that she wasincapable of knowing that her actions were morally wrong. As the Crownpoints out in submissions, many people face difficult situations with familymembers. Those charged with responsibility for the care of others areaccountable for their actions. The loss of a young life at the hands of theperson entrusted to care for such a person is a matter of community concern.The victim here was particularly vulnerable, and there was an element ofpremeditation when Ms Smith told the victim to go to the sleepout becauseshe planned to kill her there, away from her brother.[36] The Judge acknowledged that the case was not "straightforward because of theelements of premeditation and particularly given the vulnerability of the victim".7 But,bearing in mind all of the circumstances he said that a sentence of life imprisonmentwould be manifestly unjust.8[37] The Judge then determined the finite sentence by adopting a starting point of14 years' imprisonment, which he discounted by two years to reflect Ms Smith's4 R v Rihia [2012] NZHC 2720; and R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775.5 Sentencing notes, above n 1, at [35].6 At [36].7 At [39].8 At [39].remorse and her guilty plea.9 The Judge decided an MPI of six years had to be imposedto reflect the factors in s 86 of the Sentencing Act.10Section 102 of the Sentencing Act[38] This Court has recently reaffirmed the four key elements in s 102 of theSentencing Act.11 In summary:(a) Parliament has enacted a strong presumption that those convicted ofmurder will be sentenced to life imprisonment. That presumption canbe seen in the direction in s 102(1) that those convicted of murder"must" be sentenced to life imprisonment unless the presumption isable to be overruled by reference to the exception in s 102.12(b) The presumption in s 102 reflects the value placed by Parliament uponthe sanctity of life and the sentencing objectives of accountability,denunciation, deterrence and protection of society.13(c) Before a court can conclude that a sentence of life imprisonment wouldbe manifestly unjust under s 102, it must examine both thecircumstances of the offence and of the offender. It is not sufficient toexamine just the circumstances of the offender, or the circumstances ofthe offence. An examination of both sets of circumstances must beundertaken before the Court can conclude that a sentence of lifeimprisonment would be manifestly unjust.14(d) The manifestly unjust criterion in s 102 reinforces that courts will rarelydepart from the presumption of life imprisonment for those whocommit murder.159 At [42]–[43].10 At [44]–[47].11 R v Van Hemert [2021] NZCA 261.12 At [34].13 At [35]. See also Sentencing Act 2002, s 103(2).14 At [37].15 At [42].Section 104 of the Sentencing Act[39] There is another important statutory provision relevant to Ms Smith's case.Section 104 of the Sentencing Act requires courts to impose an MPI of 17 years ormore for particularly serious murders unless the court is satisfied that it would bemanifestly unjust to do so.[40] Section 104(1) of the Sentencing Act sets out nine specific aggravatingcircumstances, which Parliament said must result in a sentence of17 years' imprisonment or more unless the manifestly unjust exception applies.Included in that list of aggravating circumstances is a reference to the vulnerability ofa victim.[41] Section 104(1)(g) states that the court must impose an MPI of at least 17 years'imprisonment "if the deceased was particularly vulnerable because of his or her age,health, or because of any other factor" unless it would be manifestly unjust to do so.[42] The importance that Parliament has placed upon protecting children fromviolence is reaffirmed by s 9A of the Sentencing Act, which provides that where acourt is sentencing an offender in a case involving violence against a child under theage of 14 years, the court is to have regard to the aggravating factors set out in s 9A(2).Those mandatory considerations include:(a) the defencelessness of the victim:(c) the magnitude of the breach of any relationship of trust between thevictim and the offender:Interrelationship between ss 102 and 104 of the Sentencing Act[43] While the test of manifestly unjust is used in both ss 102 and 104, the test hasto be applied in the context of the respective sections.16 It is to be noted that the testof manifestly unjust in s 102 is firmly anchored to an assessment of the circumstancesof the offence and of the offender. Section 104 is not limited in that way. This suggeststhat the assessment of manifestly unjust under s 104 may be a broad-based assessment,which enables the Judge to decide "as a matter of overall impression that the case fallsoutside [of] the scope of the legislative policy that murders with specified features aresufficiently serious to justify at least [a minimum term of 17 years' imprisonment]".17However the specified MPI must not be departed from lightly and personalcircumstances would rarely displace the presumption.18[44] In Hamidzadeh v R, this Court considered the interrelationship between ss 102and 104 of the Sentencing Act and observed that where one or more of the factors ins 104(1) applies, it is less likely that the manifestly unjust threshold will be reachedunder s 102 because, any other approach risks undermining Parliament's intention thatthe most serious types of murder should result in lengthy periods of imprisonment.19Analysis[45] We agree with the Crown when it submitted that where s 104 is engaged it isappropriate to first reach provisional conclusions as to the impact of that section onthe case, before considering s 102. This approach is preferable to any other becausethe decision on the implications of s 104 will usually influence, but not determine, theassessment of whether or not the presumption in s 102 is able to be displaced.Section 104(1) of the Sentencing Act[46] Cooke J recognised that Kalis was a "particularly vulnerable" victim. He wasright to do so because of her age and because of her own behavioural andpsychological difficulties, which were evident through her threats of suicide. Kalis's16 R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [74] and [98]–[99].17 R v Williams [2005] 2 NZLR 506 (CA) at [67].18 At [66].19 Hamidzadeh v R [2012] NZCA 550, [2013] 1 NZLR 369 at [69]–[70].vulnerability was compounded by the fact she was dependent on Ms Smith and sheshould have felt safe in her home. This was therefore a case to which s 104(1)(g) ofthe Sentencing Act applied.[47] The Judge did not, however, assess whether or not s 104(1)(g) of theSentencing Act applied in this case. He may have thought it unnecessary to do sobecause, whilst the Crown argued s 104 was engaged, it also properly acknowledgedthat it would be manifestly unjust to sentence Ms Smith to 17 years' imprisonment.Instead, the Crown argued that a sentence of life imprisonment with an MPI ofsomewhere between 10 to 14 years was appropriate. Nevertheless, it was incumbentupon the Judge to consider the effect of s 104(1)(g) to Ms Smith's case and assess, atleast on a provisional basis, what MPI less than 17 years was appropriate.[48] Having agreed that s 104(1)(g) applies, we must undertake the task ofprovisionally considering the implications of that section in this case.[49] We have no hesitation in concluding it would be manifestly unjust to imposean MPI of 17 years in this case. Our reasons for reaching this conclusion can besuccinctly stated:(a) Ms Smith's offending was strongly influenced by her deterioratingmental health, which undermined her ability to appreciate her ownvulnerability or respond appropriately when challenged by Kalis.(b) Ms Smith is not a risk to others in society. The psychiatric reportsacknowledge she will continue to be at risk of harming herself, but thereis no suggestion she is likely to hurt anyone else.(c) Ms Smith's remorse is profound. She is wracked with guilt.[50] We do not underestimate the significance of Kalis's vulnerability, and thatMs Smith deliberately set out to kill her granddaughter in a distressing manner.Ms Smith's offending involved a gross breach of trust.20 We believe, however, that20 Sentencing Act, s 9A.Ms Smith's personal circumstances must be recognised with a compassionateresponse.[51] Setting the appropriate provisional MPI under s 104 is not an easy task. Wehave concluded, however, that the factors set out in s 103(2) can helpfully guide thispart of our analysis. That is to say, we shall give primary attention to the need to:(a) hold Ms Smith accountable for the harm done to the victim and thecommunity;(b) denounce her conduct;(c) deter others from committing the same or a similar offence; and(d) protect the community from Ms Smith.[52] As we have noted at [49(b)], there is no concern about protecting thecommunity from Ms Smith. We are also provisionally satisfied that the objectives ofaccountability, denunciation and deterrence are able to be achieved in this case byimposing the least restrictive MPI prescribed in s 103(2) of the Sentencing Act namely,a term of 10 years' imprisonment.Section 102 of the Sentencing Act[53] Having provisionally concluded that a sentence of life imprisonment with anMPI of 10 years is appropriate, we now turn to consider whether or not thepresumption of life imprisonment is able to be displaced.[54] As we have previously noted, in Hamidzadeh v R, this Court recognised thatwhere one or more of the factors in s 104 is engaged it is very unlikely that themanifestly unjust threshold will be reached under s 102. That does not mean, however,that a case that engages one of the factors in s 104 will never qualify for a sentenceless than life imprisonment.[55] What is required is for the Court to carefully assess both the circumstances ofthe offence and the offender in determining whether or not it would be manifestlyunjust to sentence Ms Smith to life imprisonment.[56] We recognise Ms Smith was herself in a vulnerable psychological state. Hercase however is different from the "battered syndrome cases" referred to by Cooke J.In those cases, the victims were directly responsible for the psychological vulnerabilityof the defendant. It is also significant that the cases of R v Rihia and R v Wihongi didnot engage s 104 of the Sentencing Act.[57] If we were permitted to only focus upon Ms Smith's personal circumstances,we would have reached the same conclusion as the High Court Judge. Hercircumstances justify considerable compassion and leniency. Unfortunately, however,we must also have regard to the circumstances of the offence. We cannot minimisethe vulnerability of Kalis, the gross breach of trust, the fact that Ms Smith set out in adetermined manner to kill Kalis and did so, using a method of murder that would havebeen terrifying for Kalis.[58] When we assess both the circumstances of the offending and Ms Smith'scircumstances we are driven to the conclusion that it is not manifestly unjust tosentence Ms Smith to life imprisonment.Result[59] The appeal is allowed.[60] The sentence of 12 years' imprisonment with an MPI of six years imposed inthe High Court is quashed and substituted with a sentence of life imprisonment withan MPI of 10 years.[61] To protect the identity of "L", whose identity is already suppressed by theHigh Court, we make an order under s 202 of the Criminal Procedure Act 2011prohibiting publication of name, address, occupation or identifying particulars of theperson described in this judgment as "P".Solicitors:Crown Law Office, Wellington for Respondent