THE QUEEN v JANINE WAIWERA RONGONUI [2001] NZCA 147 (9 May 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca321/00

THE QUEEN

V

JANINE WAIWERA RONGONUI

Hearing:	2 April 2001
Coram:	Richardson P Keith J Blanchard J Tipping J McGrath J
Appearances:	G J King and C J Milnes for Appellant S P France and D G Johnstone for Crown
Judgment:	9 May 2001

judgment of the court DELIVERED BY TIPPING j

Introduction

[1] Janine Rongonui appeals against the sentence imposed on her for the manslaughter of Pheap Im.She was sentenced to 12 years imprisonment with a minimum term of 10 years.Ms Rongonui was originally convicted of murder but that conviction was set aside and a new trial ordered:see R v Rongonui [2000] 2 NZLR 385.Her defences were lack of murderous intent and provocation.She did not deny having physically killed the victim.The manslaughter verdict at the retrial means that the jury must have been left with a reasonable doubt whether Ms Rongonui had murderous intent; or, being satisfied she had such intent, they must have been left with a reasonable doubt whether the Crown had negatived provocation.

[2] On this appeal she contends that the term of 12 years was excessive and the Judge should not have made the minimum term order.That order has the effect of increasing the time she must serve from the normal 8 years (two-thirds of the term imposed) to 10 years.

[3] The case is difficult because of the tension between the appellant's physical actions which can only be described as extreme, and the state of her mind both generally and during the relevant events.The evidence in that respect suggests that she was suffering to a significant extent from diminished responsibility, a concept which has no direct relevance to guilt under our present law, but which can have distinct relevance to the culpability of the offender.

Background circumstances

[4] The relevant circumstances were extensively traversed in the judgment of the Chief Justice in R v Rongonui (supra).In this respect her judgment was that of the Court.The following account will suffice for present purposes.The appellant and the victim were neighbours.On the morning of 24 June 1998 the appellant stabbed the victim to death.She inflicted more than 150 knife wounds.The rival cases as presented to the jury at the first trial (and the position was no different at the second) were described by the Chief Justice in this way:

The Crown and defence cases were substantially different.The Crown contended that Rongonui had killed her neighbour in the course of an aggravated robbery in which she had either gone to Pheap Im's flat armed with a knife or had been surprised in the flat by Pheap Im who may have confronted Rongonui with the knife.It was not in dispute that the appellant had stolen a number of items from the flat following the killing.The items stolen included a bankcard, the access number for which had been extracted from Pheap Im by Rongonui during the course of the attack.The Crown suggested that the number had been obtained after torture, and before the fatal blows were struck.The killing was followed by a wholesale looting of the flat.The appellant returned to her own flat after the killing to obtain a bag in which to carry the property away.

The defence case was that Rongonui was distraught.She had been under extreme social and financial pressure since the father of her four children had been gaoled some months previously for his violence towards her and one of the children.She was suffering from a major depressive episode triggered by recent and historic violence and sexual abuse and was suffering from post-traumatic stress disorder.She was brain damaged as a result of long-term physical and chemical abuse.She functioned at the level to be expected of a child or young person.Despite these handicaps, Rongonui was said to have made great efforts to be a good parent.The self-esteem she had managed to salvage from her mangled past was largely tied to her view that she was making a success of mothering her children.On the day of the killing, she had received a letter which gave her reason to believe that her children were about to be removed from her care by the Children and Young Persons Service. She believed that during the previous night, when she had been severely intoxicated, she had been sexually assaulted.On the morning of the attack, she had been physically assaulted by her then boyfriend, whom she had found in bed with her friend. Immediately before going to Pheap Im's flat she had been rejected by others she had turned to for help in babysitting her children so that she could deal with the Children and Young Persons Service.

In that state, the case for the appellant was that she had approached Pheap Im to ask her to baby-sit the children while Rongonui tried to sort matters out. Her version of events, recorded on video in the police interview, without prior legal advice, was that Pheap Im refused to help and produced a knife.The appellant acknowledged in the interview that the knife, a white bone-handled one, belonged to her but said she had lent it to Pheap Im some days beforehand.The defence case was that the rejection of help with her children, and the presentation of the knife at her (which, because of the abuse she had suffered all her life, produced in the appellant an extreme reaction) caused Rongonui to lose control.She said in the interview that she wrested the knife from Pheap Im (cutting her own hand in the process) and started to stab.When the first knife broke, she went to fetch another knife from the kitchen and continued the attack.

In the interview the appellant acknowledged stealing property from the flat but said that she took the property after the injuries had been inflicted and when she had panicked after realising what she had done.Items taken included worthless used property, such as half-used tubes of toothpaste, photographs, and deodorant, which counsel for the appellant maintained supported the explanation that the thefts were indeed undertaken in blind panic. Although not referred to in the interview, the defence case was that when Pheap Im was mortally wounded, the appellant, realising that she would need to escape with her children, asked her also for her bank card access number and wrote it down on a page torn from the telephone directory Pheap Im was holding when the confrontation began.

[5] Ms Rongonui's state of mind, as described by a psychologist, Mr Shirley, whose evidence at the second trial was the same as at the first, was referred to by the Chief Justice in this way:

Mr Shirley's brief of evidence described the psychometric testing he had undertaken of the appellant's intellectual functioning.He found that she exhibited impairment "highly suggestive of organic brain damage...".

In addition, Mr Shirley found the appellant to be suffering from dissociative amnesia. The condition results in an inability to recall important, usually traumatic, information which is too extensive to be explained by normal forgetfulness.In that diagnosis, Mr Shirley relied upon the appellant's description of inability to recall anything of her life history between the ages of three and ten, her report that she had experienced "blackouts" (in which she is able to do things but as if she is "not really there") for most of her life.He referred also to her reported inability to remember events the night before the killing.From the circumstances in which the appellant found herself the next morning, she believed she had been subjected to a sexual assault.She reported that she had also been beaten that morning.

Mr Shirley's assessment of the appellant was that she met the diagnostic criteria for antisocial personality disorder, post traumatic stress disorder, dementia due to multiple aetiologies, alcohol dependence and intoxication, dissociative amnesia and was suffering from a major depressive episode at the time of the homicide.In part these diagnoses depended upon information supplied to Mr Shirley by Rongonui.Much of it was uncontentious or was verified by Crown witnesses.Some was substantiated by the evidence of the appellant's brother which the defence proposed to call.

Based upon his diagnosis, Mr Shirley expressed his opinion as to Rongonui's behaviour at the time of the killing.The immediate factual background to the killing was recorded:

"Ms Rongonui was stressed by her personal circumstances, having four young children, financial difficulties, and impending legal problems.She was aware that her level of functioning was deteriorating.She made an unsuccessful attempt to ask for help at a consultation with her GP two weeks prior to the alleged murder.She felt rejected, compounding her frustration.

The 24 hours prior to the alleged murder, Ms Rongonui had received a letter from CYPFS in relation to a conference regarding the wellbeing of her children. This appears to have struck at the one area of her life to which she deemed herself to be committed, and at least formerly functioning well.She drank heavily during that day and evening, during the course of which she apparently experienced a sexual and a physical assault from which she has dissociated.

In a state of confusion and alcohol intoxication, Ms Rongonui sought help from one neighbour and was rejected.She later went to her immediate neighbour, the deceased, for assistance in respect of minding her children while she attended to the letter from CYPFS and again was refused help."

Mr Shirley's opinion was

"At the point of commission of the alleged murder, the above diagnostic considerations, the rejection of help when it was asked for, and the presence of a threat in the form of the deceased holding a knife, appears to have triggered a chain of events that had lethal consequences.

In an individual with Post Traumatic Stress Disorder, the physiological reactivity that can occur on exposure to internal or external cues that symbolise or resemble an aspect of previous traumatic events can trigger the General Adaptation Syndrome, placing the individual in a state of physiological hyperarousal, commonly known as "fight or flight".Her impulse control weakened by her alcohol intoxication, Ms Rongonui flew into a rage, and displaced a lifetime of anger and inability to gain help on to an undeserving victim.

Still in a state of physiological hyperarousal, it is likely she dissociated, and continued to act without reason.

Consistent with an Acute Stress Disorder, and subsequently a Post Traumatic Stress Disorder in respect of this incident Ms Rongonui has a Dissociative Amnesia in respect of a number of important aspects of the stabbing, particularly the duration and ferocity of the attack."

[6] Dr Taylor, a psychiatrist, whose evidence was referred to next by the Chief Justice, was not called at the second trial.

[7] In his evidence Mr Shirley stated that overall Ms Rongonui had a mental age equivalent to an average 15 year old.She had an IQ of 85 but in relation to abstract reasoning, her performance on testing was in the 5th percentile for 9½ year olds.This means that 95% of 9½ year olds would perform better than she would.Mr King laid some emphasis on this 9½ year old dimension but it is relevant to note that it applies only to abstract reasoning and that, in general terms, Ms Rongonui's mental age was about 15.

[8] In answer to the Judge, Mr Shirley indicated that Ms Rongonui's mental problems and her background experiences would have made her more susceptible to rejection than a normal person.This was linked to her reaction when the victim declined to look after her children.Her greater susceptibility to rejection was the characteristic upon the basis of which provocation was put to the jury.

Judge's approach to sentencing

[9] The Judge was faced with a very difficult sentencing task.He recorded that the maximum sentence for manslaughter is life imprisonment and that manslaughter cases are notoriously variable in their culpability.He then referred to the physical circumstances, describing the appellant's attack on the victim as prolonged and involving considerable force in respect of some of the wounds.The Judge then referred to the appellant's extraction of the victim's PIN number from her, saying:

It appears from the evidence that you did that by torturing her - stabbing or prodding at her with the knife causing a number of superficial wounds to her chest until she gave you the number.It seems that while you were doing this she was pleading with you for her life, and saying that you should take half the money in her account but leave the other half for her children.

Later in his remarks the Judge said he took into account that the appellant's offending "possibly" involved elements of torture (see para [13] below). Overall therefore the Judge cannot be said to have made any specific finding that torture had taken place.

[10] Reference was next made to the fact that the appellant had left the victim to die in the hallway of her own house, and had come back and kicked her to see whether she was dead.There was, in addition, the fact that the victim was left by the appellant in such a way that her children were likely to find her in truly horrible circumstances.The Judge referred to the events which followed the killing in this way:

You then comprehensively burgled Pheap Im's flat, packing clothing, perfume and household items into a large carrybag and a suitcase, the former of which you fetched from your own flat and the suitcase which you stole from Pheap Im's flat.After discarding your bloodied clothes and shoes in a nearby waste skip, you left with your children and the bags full of stolen belongings in a taxi. You went straight to an ATM machine in Miramar and attempted to use Pheap Im's cash card to withdraw $100.You then went to another ATM machine and tried to do the same thing and you also tried to obtain the balance of her account.You tried to use the card once more that evening in Porirua, before the machine retained the card.During that day or on the following morning you gave away some of the things you had stolen from Pheap Im, including her gold watch which you had taken off her wrist.

[11] The Judge's overall assessment of the crime itself was that it was "a very bad killing indeed.It was prolonged, vicious and cruel.I regard it as about as close to murder as manslaughter can get".Against that background the Judge turned to the appellant's personal circumstances.He acknowledged she had never denied killing the victim and then continued:

The provocation which was one of your two defences was said to stem from the fact that you had been rejected for the whole of your life.Rejection began in your childhood.A good deal is currently being said about the way in which Maori abuse their children and their women.I regret to say that the evidence is that you are another statistic.From the age of 3 you were beaten physically by your father.So were your 7 brothers and sisters, some of whom have themselves ended up with serious resulting difficulties in life.While these beatings were happening your mother stood by, unable or unwilling to help, possibly because she feared for herself.On one occasion you say that your father punished you by holding you under the water in the bath until you nearly drowned.

You were sexually assaulted by friends of your parents, first at the age of about 3 and again when you were about 11.

[12] The Judge then made reference to the appellant's criminal history and the periods of time she had spent in prison.Her previous offences (some 90) were almost all for dishonesty.There was no suggestion in the appellant's record that she was prone to violence.Of the appellant's past, and the effect of her background on her mental state, the Judge made the following observations:

After your last period of imprisonment in 1990 you met the father of your four children, who are now aged 2, 4, 5 and 7 years.This man was violent towards you and was in and out of prison for that violence.I understand that he is presently in prison, or has been, for beating you.You eventually sought safe haven in the Women's Refuge until you were given the flat in Miramar.But your partner kept coming back and beating you and you were apparently told to get other adults to live with you in order to protect your children.The presence of those other adults seems to have played a part in the events which led to your killing Pheap Im.

This background of physical violence affected you psychologically.You were suffering from post traumatic stress disorder, and some other identifiable psychological problems.You are mildly intellectually disabled.There is evidence that over the weeks before killing Pheap Im your mental condition was deteriorating, and that some 10 days before the killing you went to your doctor, apparently in a cry for help, but you were not able to articulate your plea.

On the night preceding the killing you drank so heavily that you blacked out. Section 12A of the Criminal Justice Act 1985 requires that I exclude that from consideration.On the morning of the killing you woke to find that you might have been sexually assaulted during the night by another man, but you were not able to remember.You were then assaulted by your then current male partner. On top of that a letter arrived that morning from CYPS and you were worried that they might be about to take your children away from you.When you sought help from another neighbour you were told to go away.

Mrs Rongonui, despite all those difficulties you made a considerable effort to bring up your children and to give them a safe and a clean home and a future. You deserve some credit for that, and some sympathy for the difficult life you have had.I think the jury's verdict may reflect such sympathy on behalf of the community.

[13] Turning to counsel's reference to various authorities, the Judge said:

Of the many cases I consider that R v Leonard, 6 December 1995, CA269/95, R v Keogan, 29 March 1993, CA266/93 and R v Holland, 6 March 1998, Gendall J HC Palmerston North T18/97 provide the best guidance.On your behalf Mr King has urged me that Holland is very similar because of the horrendous violence by an offender suffering from post traumatic stress disorder.But Leonard I think is also in point, and more so.In that case the Court of Appeal upheld a sentence of 15 years imprisonment imposed upon a man who stabbed his partner three times after an argument during which she allegedly made an abusive remark about his family.The Court of Appeal's judgment notes the sentencing Judge commenting that it was not a long cruel attack - not a long beating ending in death which might warrant life imprisonment.

I consider that the sentencing range in your case is 7 to 15 years imprisonment.In selecting the appropriate sentence I take into account the circumstances of the offence as I have outlined them - that this was a vicious, cruel and prolonged attack on an innocent victim in her own home.I take into account that it possibly involved involving elements of torture and extortion. I consider that it is about the worst case of manslaughter imaginable, bordering on murder.I also take into consideration your sad background Mrs Rongonui and your mental characteristics and difficulties.

[14] His Honour concluded by referring to the effect of the crime on the victim's family and on the Cambodian community of which she was a member.

The 12 year term

[15] The Judge had the difficult task of striking a balance between the extremely serious combination of facts constituting and surrounding the manslaughter on the one hand, and, on the other, the appellant's mental state which resulted in her completely losing control of herself.She did so in circumstances which objectively were hardly provocative.But for her, with her background and accumulated mental difficulties, the position was different.We consider it more likely that the jury found for manslaughter on the basis of provocation rather than lack of murderous intent.The only thing which could rationally have displaced the otherwise overwhelming inference of murderous intent, would have been automatism, or insanity in the sense of the appellant not understanding the nature and quality of her actions.Neither of these was suggested.

[16] Mr King's principal submission was that the Judge had not given sufficient weight to the appellant's diminished responsibility, that being the product, he submitted, of her mental limitations and problems.He further submitted that the Judge had failed to give appropriate weight to the jury's verdict of manslaughter as opposed to murder.Counsel challenged the Judge's approach to the "torture" issue and submitted that, as any such conclusion was inconsistent with the defence case, he should not have placed any weight on it.Mr King also contended that the Judge was wrong to place this offending nearer to the 15 year sentence upheld by this Court in Leonard rather than at or about the level of 7 years which commended itself to the sentencing Judge in Holland.He submitted that a sentence within the range of 7 to 9 years would have been appropriate.

[17] For the Crown, Mr France argued that the sentence of 12 years was within the range available to the Judge, who was particularly well placed to assess the appropriate term as he had presided at the trial.Counsel argued that this was a manslaughter which came close to the very top of the scale and the case was one where the distinction between murder and manslaughter for sentencing purposes should be regarded as small.The Crown emphasised the extremely violent and prolonged nature of the attack but, conversely, that some of the wounds were only skin deep.These were the wounds said to have been part of the appellant's "torturing" of the victim to extract her PIN number.Counsel suggested that Leonard was a comparable case and that, as the Judge had imposed a sentence three years lighter than that upheld in Leonard, such reduction fully factored in the appellant's mental problems.

[18] It is desirable to address first the cases of Leonard and Holland which featured significantly before the Judge and in this Court. In Leonard the appellant had killed his female partner.Theirs had been a violent relationship which culminated in her death at his hands.The appellant had a longstanding and severe substance abuse problem.He had spent much of the day drinking, gambling and brooding on his relationship difficulties.In the evening he went to a neighbour's house where his partner was.In his drunken and angry state he threatened her and then went home.She returned to the home; a violent argument ensued during the course of which the appellant stabbed her three times with a fish filleting knife.He thereupon telephoned his father to tell him he had stabbed his partner.His father implored him to call an ambulance but he did not do so.She died of her wounds.

[19] Leonard's defence to the charge of murder which was brought against him was that he did not appreciate that death was likely to ensue from the wounds he was inflicting.He accepted that an ordinary reasonable person would have had such appreciation but asserted that, in the state he was in, he himself did not appreciate the likelihood of death resulting from the wounds. He was found not guilty of murder but guilty of manslaughter.Provocation was also left to the jury.

[20] On the appeal against the 15 year sentence, this Court concluded that, as there was nothing "seriously to be advanced as provocation", the verdict of manslaughter could be explained only by doubt as to the appellant's knowledge of the likelihood of death.The jury appears to have been satisfied that there was doubt whether the appellant meant to cause death.As in this case, the trial Judge in Leonard expressed the view that the manslaughter was "clearly as close to murder as one might get".Indeed the Crown had invited the Judge to impose a sentence of life imprisonment.He declined to do so, saying that the case did not, as some do, involve a long and cruel attack. Counsel for the appellant in Leonard had emphasised what was claimed to be a state of diminished responsibility on his client's part but this Court indicated that the appellant's state, substantially induced by the consumption of alcohol, could not be given much weight in view of s12A of the Criminal Justice Act 1985.The Court saw the case as being "at the high end of the scale of seriousness for manslaughter".The Court did however observe:

In a case such as this little assistance can be gained from those cases where manslaughter verdicts have resulted from the failure to exclude provocation. Killings where there has been a loss of control through provocation reflect culpability at quite a different level.R v O'Sullivan (CA340/93 judgment 15 December 1993) must be considered in that light.

[21] It is difficult to generalise about whether manslaughter involving no murderous intent is more or less culpable than manslaughter involving a killing with murderous intent but committed under provocation.Much will depend on the individual circumstances, both of the killing itself, and of the offender's mental state viewed against either the level of provocation or the inherent likelihood of the wounds inflicted causing death.What can be said of the present case is that it must have been Ms Rongonui's mental difficulties which led the jury to find for manslaughter, whether on the probable basis of provocation or on the less likely basis of lack of murderous intent. Essentially the appellant's culpability, against the objective facts of the killing, must depend primarily on the weight to be given to her diminished responsibility, rather than on which route the jury followed in arriving at their verdict of manslaughter.

[22] In upholding the sentence of 15 years in Leonard, this Court described it as "indeed a stern one" but emphasised the discretion open to the trial Judge who had heard all the evidence.The Court was not prepared to say the sentence was not open to the Judge or was wrong.

[23] Mr King placed substantial reliance on the sentence of 7 years imposed in Holland.That sentence did not come before this Court.Holland was a prison inmate who killed a fellow prisoner in the exercise yard.The victim had the misfortune to ask Holland to turn his radio down.Holland flew into a violent rage, punching the victim many times about the head until he fell down unconscious.He then kicked the victim as he lay on the ground.Death resulted.The evidence led at Holland's trial was rather similar to that in the present case.It was to the effect that he suffered from post-traumatic shock disorder resulting in loss of self control because of a "fight/fright" response.The sentencing Judge said that Holland's culpability was "reduced because of [his] emotional perception of an event which, to outward signs, was normal".The Judge considered the crime was "close to murder".He acknowledged, however, that Holland had the benefit of the jury's verdict which the Judge interpreted as resulting from the failure of the Crown to prove murderous intent.Provocation was not raised by the defence but the Judge had left it to the jury.

[24] In imposing the sentence of 7 years the Judge said he was giving Holland "such charity" as he could.We mean no disrespect to the Judge when we say that Holland's case cannot be regarded as providing any general sentencing guidance for upper level manslaughter.It was indeed a charitable sentence in all the circumstances, perhaps deriving in part from Mr King's efforts, he being counsel for the defence in that case also.

[25] Having considered these cases, we will now look at the circumstances of the present case on a broader basis.We have borne in mind but do not find it necessary to discuss all counsel's individual submissions in detail.Without Ms Rongonui's significant diminished responsibility, her crime would truly have been about as serious a manslaughter as one might ordinarily find.Bearing in mind that Parliament has contemplated that some cases of manslaughter will justify life imprisonment, a finite term distinctly greater than 12 years could have been justified but for the appellant's mental difficulties.The sentencing Judge was clearly mindful of those difficulties.The issue is whether he gave them sufficient weight.Overall we consider he did not and for the following reasons.

[26] It will already be apparent that Ms Rongonui had an upbringing which was truly appalling.Coupled with that handicap, her general mental functioning was at a level well below that of an ordinary adult.In the 24 hours prior to the killing, she had encountered a series of traumatic events which culminated in her receipt of the letter which she thought put her continued custody of her children at risk.The expert evidence, which the jury must have accepted, was that this was the final straw.While it is fair to say that her mental deficit and the triggers to her loss of self control were reflected in the verdict of the jury, it would not be appropriate to regard these factors as entirely spent in that verdict.In the circumstances of this case the appellant's underlying mental difficulties justify further recognition in the sentence imposed.In our view they required recognition to a greater extent than is inherent in the Judge's assessment.While functioning generally as a 15 year old, it is a reasonable inference that in respect of more sophisticated mental processes her intellectual capacity was at a significantly lower level.The evidence is that in this respect she barely reached the level of a 9 year old.The stark reality is that for this most terrible crime the appellant could not appropriately be sentenced on a fully adult basis.The Judge was of course very mindful of this dimension and perceptions can reasonably differ as to the degree to which this factor should be reflected in the ultimate sentence.

[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.

[28] The Judge did not indicate in his sentencing remarks that he was bringing to account in the sentence he passed any discrete element for the purpose of public protection.There is a link here with the minimum term issue to be discussed below, but the point is relevant also to the length of the finite term.Although Mr France placed some weight on this aspect and suggested that the Judge could well have relied upon this consideration, there is no evidence beyond that inherent in the commission of the crime itself to suggest that Ms Rongonui is a general danger to society.She has no previous convictions for violence.Thus we do not consider future public safety was a significant factor in fixing the length of the finite term.

[29] We recognise that the appropriate sentence must be seen as denouncing the brutal killing of another human being and as reflecting the appellant's associated conduct.We also recognise that the killing took place following the entry by Ms Rongonui into the victim's house, albeit not in circumstances amounting to home invasion in the statutory sense.Nevertheless and despite the terrible nature of the appellant's acts and the advantage the Judge had in presiding over the trial and hearing all the evidence, we are in the end brought to the view that the appellant's substantial mental problems did not receive enough recognition.Indeed without that dimension a sentence in the vicinity of 15 years would not have been objectionable.The case would then in any event almost inevitably have been one of murder.

[30] We have concluded that the case required a greater reduction from an otherwise appropriate sentence than is inherent in the sentence of 12 years imprisonment.While the point cannot be pressed too far, there is validity in Mr King's proposition that without the appellant's mental difficulties the crime would probably not have occurred.Overall we consider that a sentence of 10½ years appropriately reflects all the competing factors and we are therefore satisfied the sentence passed was excessive.

Overseas authorities

[31] In coming to our decision in this case, we have had the benefit of being able to consider a large number of cases from overseas.They were helpfully brought to our attention by counsel at our request.It would unduly lengthen this judgment to traverse all the cases we have examined.It can, however, be said that sentencing levels, particularly in the United Kingdom and Canada, for offences of the present kind involving diminished responsibility are generally lower than that represented by the present case, albeit it has the extra dimension of the associated criminality.

[32] The leading English case on manslaughter in circumstances of diminished responsibility still appears to be R v Chambers (1983) 5 Cr App R (S) 190.A man had killed his wife by stabbing her to death.He had mental problems which significantly impaired his responsibility for his actions.He had inflicted 23 stab wounds in his wife's chest and had then gone to a priest to confess what he had done.10 years imprisonment was reduced to 8 on appeal.

[33] In R v Hicks (1987) 9 Cr App R (S) 502, an 8 year sentence for a broadly comparable offence, albeit committed in different circumstances, was upheld.Another relevant English case is R v Gussman (1994) 15 Cr App R (S) 440.There the appellant had attacked the former partner of the woman to whom he was engaged to be married.He suffered from severe depression.He had stabbed the victim to death inflicting 131 wounds in the process.The appellant was of otherwise blameless character.The trial Judge's sentence of 8 years imprisonment was reduced on appeal to 5.

[34] In R v Au-Yeung (1989) Cr App R (S) 59, the appellant used a meat cleaver in an attack on two members of the staff at his takeaway restaurant. One person died.The appellant was aged 51 and otherwise of good character. He was convicted of manslaughter, on the basis of diminished responsibility, in relation to the person who died, and of attempted murder in relation to the person who survived.There were a number of strands which affected the offending.The appellant's diminished responsibility was obviously the most significant aspect.The trial Judge sentenced him to 15 years imprisonment for manslaughter and 7 years concurrent for attempted murder.His appeal was allowed and the sentences were reduced to 6 years concurrent on both charges.

[35] There are a number of Australian cases.We will mention only two.The first is R v Palmer, an unreported decision of the Court of Criminal Appeal of Victoria, delivered on 13 September 1996.A racially inspired fight had broken out.The appellant was one of a group who circled the deceased. The appellant hit him several times with a baseball bat while others were punching and kicking him.The deceased ultimately died of the injuries inflicted.The appellant had a difficult childhood.He was 18 at the time. The offence was described as one of the most serious examples of manslaughter and one which carried with it a need to deter racial disharmony.The appellant who had been sentenced to 6 years imprisonment, with a non parole period of 4 years, unsuccessfully appealed from that sentence.He had suffered electrocution at the age of 14 from which it appears he might have had what was described as cerebral dysfunction affecting the control of his emotions.This had been exacerbated by the consumption of alcohol and drugs.

[36] The other case is R v Panozzo, an unreported decision of the Court of Criminal Appeal of New South Wales delivered on 25 March 1993.The appellant had been convicted of manslaughter on the basis of provocation.His wife had become interested in another man.The appellant had found incriminating letters.He went to another part of the house, took out a loaded gun, and shot his wife to death in the presence of their two children.His background was poor.There was no question of insanity but medical evidence showed that he was suffering from thought disorder bordering on a state of psychosis.A sentence of 10½ years imprisonment was upheld on appeal.

[37] The position in Canada can be exemplified by three recent cases.The first is R v Gray (1995) 25 W.C.B. (2d) 314.The report records a sentence imposed in Ontario for manslaughter by a man who had a history of psychiatric illness.He and the deceased lived together.A violent argument broke out during which the deceased was knocked to the ground.The appellant kicked her in the head, as a result of which she died.No weapon was used.He was 29 years old and had a long list of convictions but none for violence.At the time the appellant had not been taking the medicine prescribed for his paranoid schizophrenia.He was sentenced to 6 years imprisonment.

[38] In R v Hyjek (2000) 47 W.C.B. (2d) 336, the same Court sentenced a man following his conviction for manslaughter.He was aged 41 and had no previous convictions.He was suffering from a mental illness but not amounting to insanity.He had strangled his wife to death in grotesque circumstances. Bearing in mind pre-sentence custody, the sentence imposed was just over 9 years.

[39] The third case is R v Stone (1999) 134 C.C.C. (3d) 353.This case reached the Supreme Court of Canada in relation to a number of legal aspects. The sentence imposed was not in issue, but is useful for comparative purposes. The appellant had had an argument with his wife.He stabbed her to death, inflicting 47 wounds in the process.She died through loss of blood.He disposed of the body but ultimately surrendered to the police.He was said to have been in a dissociative state at the time of the attack, as a consequence of which he was acquitted of murder but found guilty of manslaughter. Questions of automatism had been raised.The sentence imposed was one of 7 years imprisonment.

The minimum term order

[40] The Judge's imposition of a minimum term of 10 years in length cannot stand with the intended adjustment to the length of the head sentence.A more fundamental issue is whether a minimum term order was ever appropriate.The Judge gave no reasons expressly directed to this aspect.We point out that s80(7) of the Criminal Justice Act 1985 requires the giving of reasons and we construe that provision as requiring the giving of reasons specifically directed to the minimum term order.It is not sufficient to leave the Court's reasons on that aspect to be inferred, if that be possible, from general sentencing remarks.Counsel informed us that the Judge did not indicate he was contemplating making a minimum term order.No submissions had been addressed to that question on either side.The appropriate course was to invite submissions on the point before making an order effectively lengthening what the Judge saw as the otherwise appropriate term by 2 years.

[41] We do not find it necessary to address counsel's submissions on whether the earlier test in s80 of "so exceptional" or the section's present test of "sufficiently serious" applies to the appellant's case.She committed the offence when the earlier test was in force but was sentenced after the new and less onerous test had been enacted.In the circumstances of this case our decision does not turn on which test applies.There is a link here with the requirement for reasons expressly directed to the minimum term aspect.

[42] Normally the Court will be contemplating the making of an order under s80 only when passing an indeterminate sentence, ie. life or preventive detention. The first part of s80 is directed to such circumstances.In cases of that kind the question of public safety is not a significant feature because the indeterminate nature of the sentence allows that issue to be taken care of within the administration of the sentence itself.Hence a line of cases in this Court has indicated that the principal purpose of a s80 order in the case of an indeterminate sentence is to provide for additional denunciation of a particularly heinous or serious crime; the further purposes of additional punishment and deterrence are also involved: see R v Wilson [1996] 1 NZLR 147 (CA); R v Parsons [1996] 3 NZLR 129; R v Sibley (CA290/97, 15 October 1997); and Hall on Sentencing at D839.

[43] In contrast s80(4) permits the Court to make a minimum term order when sentencing an offender to a finite term of imprisonment of more than two years for a serious violent offence.In such a case the aspects of denunciation, punishment and deterrence can and will ordinarily be reflected in the length of the finite sentence which will then attract the present two-thirds rule: ie. release after two thirds of the sentence has been served unless an application is made to the contrary: see sections 90 (final release) and 105 (requirement to serve full term).Hence the rationale for imposing a minimum term under s80(4) cannot logically be the same as applies under the earlier subsections involving indeterminate sentences.

[44] In s80(4) cases, we consider Parliament must have been intending the Court to adopt an essentially forward-looking approach involving a consideration of whether the ordinary two-thirds rule will result in sufficient protection for the public in the case of an offender who is seen as being a danger to the public; albeit there remains the capacity to extend the two thirds date under s105.There is sensitivity here because the Court will be considering the imposition of a longer effective term, not because of what the offender has done, but because of what the offender may do in the future.While an offender's danger to the community can be taken into account by increasing what would otherwise be the appropriate length of a finite sentence, there are limits to how far that can be taken:see R v Leitch [1998] 1 NZLR 420 (CA) at 430 citing R v Pratt CA61/78, 8 August 1978 and R v K (1990) 6 CRNZ 210 at 212.This aspect of sentencing is often referred to as the Ward principle after R v Ward [1976] 1 NZLR 588 (CA). Hence we consider that the focus of s80(4) should be on those cases, relatively rare as they are likely to be, in which the length of the appropriate finite sentence, even after taking into account the Ward principle, is not sufficient on a two-thirds basis to give the public the protection it deserves from a dangerous offender.This approach is consistent with the decision in R v Murray (1997) 14 CRNZ 524 (CA), particularly at 529.

[45] Before a Court imposes a minimum term longer than what is inherent in the automatic two-thirds rule, it must be satisfied that the case is (in terms of the present test) sufficiently serious in the public safety sense.This seems to us to be the only way logically to give effect to Parliament's purpose in a s80(4) situation, bearing in mind that the Courts have the power, indeed the duty, to reflect the general seriousness of an offence in the length of the finite sentence.That exercise logically precedes any question of making a minimum term order under s80(4).

[46] Approached on this basis, Ms Rongonui's case did not justify the making of an order under s80(4).As we have already observed, there was no specific evidence suggesting she was a general danger to the community. Indeed the fact that at the age of 36 she had no previous convictions for violence points in the other direction.It is also significant that in his general sentencing remarks the Judge did not suggest that Ms Rongonui was a danger to the public in relation to offences of violence.

Formal order

[47] It follows from our conclusions on both aspects that the appeal is allowed.The sentence passed and the minimum term order made in the High Court are both quashed.Instead the appellant is sentenced to imprisonment for 10½ years.

Solicitors

Crown Law Office, Wellington