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BLACKMORE v R [2005] NZCA 102 (18 May 2005)

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BLACKMORE v R [2005] NZCA 102 (18 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA29/05

THE QUEEN

v

SCOTT JOHN BLACKMORE

Hearing: 21 April 2005

Court: Hammond, Robertson and Potter JJ

Counsel: J H M Eaton for Appellant
M F Laracy for Crown

Judgment: 18 May 2005

JUDGMENT OF THE COURT

The appeal against the sentence of eleven years imprisonment is dismissed. The appeal against the imposition of a minimum non-parole period is dismissed. The appeal against the minimum non-parole period fixed at two-thirds of eleven years is allowed, and the term of minimum non-parole is varied to five and one half years.

REASONS

(Given by Hammond J)

Introduction

[1] Scott Blackmore was charged with the murder of Lisa Bronwyn Blackmore, by stabbing her at Christchurch on 13 October 2003.
[2] At his trial in the High Court Mr Blackmore was found not guilty of murder but guilty of manslaughter.
[3] On 17 December 2004 Mr Blackmore was sentenced to imprisonment for 11 years. He was ordered to serve a minimum period of imprisonment of two-thirds of that 11 years.
[4] Mr Blackmore now appeals against that sentence on the grounds that it was manifestly excessive; he appeals against the imposition of a minimum non-parole period; and alternatively, he says that if a minimum non-parole period was justified, then the period actually set is, in all the circumstances of the case, too high.

The facts

[5] Ms Lisa Blackmore had been Mr Blackmore’s de facto partner. They lived in Christchurch. Ms Blackmore left Mr Blackmore in April of 2003. She went to the West Coast for a time. She then returned to Christchurch. She endeavoured to keep her whereabouts from Mr Blackmore.
[6] The Blackmores had two young children. There had been ongoing disputes between them as to the custody of these two children. The care of the children had fallen largely to Mr Blackmore. Undoubtedly Mr Blackmore had a sense of "frustration and despair" as the High Court Judge (Chisholm J) termed it, about the children’s wellbeing, and was concerned to settle the future arrangements for their care.
[7] Mr Blackmore suffered from a mild to moderate depressive disorder. He attempted to take his own life a little over a week before the incident which led to this trial. Chisholm J accepted that, at the time of the incident which led to Ms Blackmore’s death, Mr Blackmore was also vulnerable because of a drug he was taking for another medical condition. He had consumed alcohol, and the Judge appears to have accepted that there were some lingering effects of carbon monoxide on Mr Blackmore resulting from his suicide attempt.
[8] Mr Blackmore found out that Ms Blackmore had returned to Christchurch. He discovered that she was staying with two friends. On the day of the murder, he made several telephone calls to the apartment where Ms Blackmore was staying. It seems that Mr Blackmore wanted Ms Blackmore to go to his residence to talk about custody of the children that evening. The tenor of the phone calls appears to have been such that Ms Blackmore was concerned, and decided to bring her car in off the street and park it out the back of the apartment. There was evidence that the occupants attempted to secure the apartment. They telephoned a friend who lived just around the corner. It was suggested that if he should receive "a hung-up phone call - the phone rings once", "just to come around". This precautionary step was taken in the middle of the telephone exchanges to which we have referred.
[9] Mr Blackmore’s last phone call was taken by one of Ms Blackmore’s friends. She advised Mr Blackmore that Ms Blackmore did not wish to speak to him. It was relayed to Mr Blackmore that the issues about the custody of the children would have to "go to court". This was some time before 7.00pm.
[10] Some three hours later, the occupants heard the back door open. Mr Blackmore came into the residence. He had a knife taped to his wrist, but protruding in such a manner that the knife could be utilised.
[11] Ms Blackmore and her two friends were sitting when Mr Blackmore entered the room. The knife was observed. One of the occupants endeavoured to get the knife off Mr Blackmore, but failed.
[12] When she saw Mr Blackmore enter the room, Ms Blackmore had got up and moved towards a sliding door in the lounge to pass through it, and avoid him. That door had been locked. Mr Blackmore pinned Ms Blackmore up against it. Mr Blackmore told the other two women to go and sit on the couch, and one of them gave evidence that Mr Blackmore said "that he was going to kill Lisa". Ms Blackmore was screaming and being pushed down towards the floor.
[13] The other two women rushed out of the house to try and get assistance. When one of these women reached a neighbour’s house Ms Blackmore was apparently still screaming. This witness also said that, before she decamped to try and get help, she heard this: "I am sure she said something like, ‘don’t Scott, I’ll talk’, or something like that". This witness said that Ms Blackmore was still screaming at the time the police were contacted. The screaming stopped, she said, not long before the police arrived.
[14] When the apartment was entered by the police, Ms Blackmore was found to have been stabbed once, in the back. This stab wound had been administered with such force that an artery had been severed by this single strike.
[15] The defence at trial was run on two grounds: lack of intent to kill, and provocation. In the result, the jury returned a verdict of manslaughter, rather than murder. On the sentencing, Chisholm J recorded as his view, that provocation was the instrumental factor which had led to the jury verdict as returned. He remarked, that this level of provocation had to have been "just about as low as it could have been". It is also conceivable that the verdict may have been a merciful one.
[16] Before us, Mr Eaton submitted that, having regard to the "tortuous background" of the appellant, the suicide attempt the previous week, and the inability of Mr Blackmore to discuss child custody access issues with Ms Blackmore that evening, what emerged was "a picture of a highly distressed and desperate father who was simply not coping". He suggested that Mr Blackmore did not go around to the particular address to kill Ms Blackmore, however he did snap and lose self-control, but only when it became apparent that those present "were not prepared to stay and talk to him about child custody and access issues".
[17] It is apparent that the High Court Judge, who had presided over this trial for some eight days and who had heard all the evidence, took a less benign view of what had occurred. The Judge acknowledged the difficulties which had afflicted Mr Blackmore’s life, but on the evidence which had been before him, it was entirely open to him to say, as he did, that this case was about as near as it was possible to get to murder without labelling it as such. That must be so: there had been a very distinct period of time between the phone calls which had obviously upset Mr Blackmore; he had prepared himself for violence (admittedly in a bizarre way); he had come uninvited into the house through the back door; and notwithstanding that Ms Blackmore said she would talk, Mr Blackmore killed her with one powerful strike of the knife.
[18] Mr Eaton skilfully endeavoured to persuade the Court that the incident should be seen in a less cold-blooded light, and as being more like a reactive sort of attempt by a very distressed man. That was not the view that the trial Judge appears to have taken of the facts. There is no basis on which this Court, without the overwhelming advantage of having been present at the trial, can interfere with the view that the Judge took of the incident that evening.

The High Court sentencing

[19] As we have noted, the Judge felt the case fell "towards the murder end of the scale". He also noted the premeditation (as evidenced by Mr Blackmore bringing a knife with him to the victim’s address); the fact that the case involved domestic violence and a home invasion; the level of callousness; and Mr Blackmore’s previous convictions for violent offences.
[20] The Judge weighed, as mitigating factors, and other factors in Mr Blackmore’s favour, his willingness to plead guilty to manslaughter (although the Judge considered that this was diluted by the fact that a conviction of at least manslaughter was "virtually inevitable"); Mr Blackmore’s ongoing depressive disorder; the care he had provided to his children over the past years; and his remorse.
[21] The Judge concluded that a starting point of 13 to 14 years imprisonment was appropriate. Credit was extended for the mitigating factors, and the Court imposed a sentence of 11 years imprisonment.
[22] As to a minimum non-parole period, the Judge considered the case in terms of s 86 of the Sentencing Act 2002, as it stood prior to a recent amendment, viz:

86. Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment – (1) If a court sentences an offender to a determinate sentence of imprisonment of more than 2 years for a particular offence, it may, at the same time as it sentences the offender, order that the offender serve a minimum period of imprisonment in relation to that particular sentence.
(2) The court may impose a minimum period of imprisonment under this section if it is satisfied that the circumstances of the offence are sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002.
(3) For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.
(4) A minimum period of imprisonment imposed under this section must not exceed the lesser of –
(a) two–thirds of the full term of the sentence; or
(b) 10 years.
(5) For the purposes of Part 4 of the Summary Proceedings Act 1957 and Part 13 of the Crimes Act 1961, an order under this section is a sentence.

[23] The Judge said:

[22] The minimum non-parole issue. This matter has to be considered in terms of s 86 of the Sentencing Act as it stood prior to amendment. Mr Shamy suggests that it is an appropriate case for a minimum non-parole period and that that period should be two-thirds. On the other hand, Mr Eaton denies that there is any sound basis for a minimum non-parole period because there is nothing here that would take your offending out of the ordinary range of manslaughter.
[23] I think there is one thing here that does take it out of the ordinary range of manslaughter cases and that is the home invasion aspect. There is also, I am bound to say, an element of callousness in your offending for the reason that I have already given.
[24] You are to serve a minimum non-parole period of two-thirds.

The basis of the appeal

[24] For the appellant, Mr Eaton covered the ground very thoroughly in his submissions. He said everything that could have been said for the appellant.
[25] Counsel rightly recognised that the essential task of a sentencing Judge in a case of manslaughter is to fix on the level of culpability, there being nothing approaching a tariff or benchmark in cases of this kind.
[26] It does no injustice to the submissions to say that they emphasised the tragic background, and consequences, of the case; and Mr Eaton emphasised that this was really a "momentary loss of control" type of case, under great stress and the particular circumstances of the hour. He said the killing was not a brutal or callous one. Only a single knife strike was inflicted, and regrettably it had the effect of severing an artery.
[27] Mr Eaton further submitted that, having regard to the range of sentences for manslaughters, and in particular other domestic manslaughters, this was not one of the more culpable cases. He suggested that a sentence of 11 years imprisonment was at the higher end of the scale.
[28] Mr Eaton submitted that this was not a case for a minimum period of imprisonment, and certainly not one for the period actually imposed.

Disposition

[29] We agree with the Crown submissions that the starting point in this case must be that this was an instance which fell close to the murder end of the scale.
[30] Once it is accepted that the offending was at the upper end of the manslaughter scale, it is necessary to have regard to what the starting point should be.
[31] This is not a case in which there has been a homicide in the context of other serious offending such as drug dealing or robbery or where there was particular brutality, which might well attract a condign sentence.
[32] As to authorities in this Court, in O’Sullivan CA340/93 15 December 1993 the Court there held that a manslaughter (by sniping) could attract an effective sentence of ten years imprisonment (as being at the (then) upper end of the range).
[33] In Leonard CA269/95 6 September 1995, a sentence of 15 years in the context of another domestic incident involving a stabbing was not disturbed. Gault J said:

The sentence of imprisonment for 15 years was indeed a stern one but it reflected the assessment of culpability by an experienced trial Judge who was well placed to make it having presided over the trial and heard the appellant give his evidence.

[34] In R v Rongonui CA321/00 9 May 2001 a Full Court of this Court reduced a sentence of 12 years to one of 10 and a half years. That case was regarded by the sentencing Judge as "about as close to murder as manslaughter can get". Tipping J said:

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 (at [21]).

However, it is apparent that the reduction of sentence in that case was substantially occasioned by the recognition in this Court that the general mental functioning of Ms Rongonui was "at a level well below that of an ordinary adult" [26]. Indeed, as Tipping J noted, "The evidence is ... that in this respect she barely reached the level of a nine-year-old" [26].

[35] Mr Eaton complained that the sentence actually imposed was out of line, in particular, with another sentencing decision of Chisholm J in R v Jarman HC CHC T81/02, 1 August 2003, where a sentence of nine years imprisonment for manslaughter with a minimum non-parole period of six years had been imposed in another altercation in which a man associated with the accused’s wife was shot to death (including being shot in the genitals whilst he was lying wounded, on the ground). But again that case was entirely dependant upon its own factual context, and Chisholm J was very well placed to compare the relative culpability in the two cases.
[36] We are not disposed to interfere with the sentence of 11 years imprisonment in this case. This was a quite deliberate intrusion with, at best, a low level of provocation. It was very close to murder. The sentence - though firm - was one which was available to the Judge.
[37] We add that, in fairness to the appellant, we have looked to see whether the New Zealand sentences are comparable with those imposed in other jurisdictions. In England, in its valuable consultation paper, Sentencing of Manslaughter by Reason of Provocation (2004), the Sentencing Advisory Panel summarised the following range of sentences in more than 50 cases (between July 2000 and June 2003) where there had been manslaughter by reason of provocation (at 10).
[38] This particular reference arose out of one by the Home Secretary under s 81(3) of the Crime and Disorder Act 1998 by reason of governmental concern that:

... current sentencing in cases of manslaughter by reason of provocation in domestic violence homicides does not adequately reflect the seriousness of the cases and the loss of life, and that the tariff is out of line with levels of sentencing in other cases of homicide and serious violence (above, [37]at 3).

[39] The findings were:

_____________________________________________________________
Sentencing Range Case Features
(contested trial)
_____________________________________________________________

12 years Firearm carried and used after provocation

10-12 years Knife carried and used, or great brutality

7 years Moderate provocation and sudden retaliation

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

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

[40] The leading "knife" case appears to be Latham (Attorney-General’s Reference No 33 of 1996) [1997] 2 Cr App R (S) 10. Kennedy LJ said:

Even when a particular type of manslaughter is isolated from the rest it has to be recognised that it covers a wide field, and, if justice is to be done, sentencers must not be put in straitjackets, but for the reasons identified in this judgment it seems to us that where an offender deliberately goes out with a knife, carrying it as a weapon, and uses it to cause death, even if there is provocation, he should expect to receive on conviction in a contested case a sentence in the region of 10 to 12 years (at 12).

[41] Recently published United Kingdom statistics also show that in that jurisdiction the most common method of killing (27 percent) is with a sharp instrument (above [37] at 27).

Minimum period of imprisonment

[42] The parties approached this appeal on the basis that s 86 of Sentencing Act 2000 applies, as it stood prior to the amendments to that provision in 2003. On that footing, R v Brown [2002] 3 NZLR 670 is the leading authority.
[43] As this Court there noted, the section provides a mechanism to constrain the outcome where the offending is so serious that release after one-third of a sentence "would plainly constitute an insufficient response in the eyes of the community, even though there may be no ongoing safety risk" ([28]). Further, "It must be a matter for judicial judgment whether the "sufficiently serious" threshold [posed by that provision] is crossed". Essentially, the test is one of the culpability of the appellant ([28]). The focus, in deciding to impose a minimum term, is on the circumstances of the offence (not the offender) ([28]).
[44] Determining just what the minimum term should be has been recognised by this Court as a "difficult" exercise (Brown, at [39]). In general, it should reflect the seriousness of the offending and the circumstances surrounding it. We add that the term "seriousness" is determined by two main parameters: the culpability of the offender and the harm caused by the offence.
[45] A trial Judge must carefully identify why that Judge considers a minimum parole period is appropriate, and how any resultant term was reached. We appreciate that this aspect of a case often comes at the end of a relatively lengthy (and fraught) sentencing, the relevant considerations often overlap with other aspects of the sentencing which the Judge has already traversed, and the exercise is inherently difficult. That said, this aspect of a case is of the greatest significance to the public and a prisoner, and appellate review is rendered difficult if this aspect of a case is dealt with in only a sentence or two, as was the case here in this instance.
[46] As to whether a minimum non-parole period was appropriate in this case, the Judge said the "one thing" that took the case out of the ordinary run was "the home invasion aspect", and also, that the killing was "callous".
[47] We can dispose of the latter point first. It cannot be said that this was, in the usual sense of that term at any rate, a "callous" killing. Every murder is, in a real sense, "brutal" or "callous", but this case had none of the features with which all Judges are sadly only too familiar in homicide cases today.
[48] The Judge seems to have used the compendious expression "home invasion aspect" to cover several features of this case. Mr Blackmore - involved in domestic issues over custody - took things into his own hands. Armed, he unlawfully entered a home, terrorised the deceased, and the occupants, and then killed Ms Blackmore even when she said she would talk to him. Mr Blackmore was not entitled to take matters into his own hands in that way, however "provoked" he felt. A killing in the course of an endeavour to enforce one’s own way of seeing things in a dispute of this character cannot be said to be in the "ordinary" range of manslaughter. In the result, we are unanimous that the Judge was right to impose a minimum non-parole period.
[49] Whether the actual period of minimum non-parole imposed was too high has given us some real difficulty. The first point to note here - with the focus on the offence - is that this was very serious offending. The second point is that the Full Court of this Court made it plain in Brown that there is no element of double punishment in fully weighing seriousness both on the imposition of the sentence, and in considering the minimum term. As Gault P said, "The seriousness of the offending necessarily must be considered in the assessment of each" (at 679, line 17).
[50] A majority of the panel have come to the view that the period imposed was longer than was necessary and the reasons articulated by the Judge were an insufficient basis for imposing the maximum possible minimum term. This was not the worst case of its kind, even after taking into account that domestic killings are as serious as any other killings.
[51] The majority Judges would therefore allow the appeal, on this point only, and substitute a minimum non-parole period of five and one half years.
[52] One member of the panel would not have disturbed the minimum period imposed, for five reasons: the focus must be primarily on the nature of offence, rather than the offender; when so considered, this offending could be characterised as a "worst case" - it had the elements of deliberate carrying of a knife, home invasion, and fatal violence to settle a domestic dispute; the seriousness of the offence itself must (again) be given full weight in the decision on the term to be imposed; domestic violence cases should receive no less a sentence than non-domestic cases; and that it has not been shown the sentencing Judge was "plainly wrong" in that the term may be stiff, but it is not one which should be interfered with.

Conclusion

[53] The appeal against sentence is dismissed. The appeal against the imposition of a minimum non-parole period is dismissed. The appeal against the period of two-thirds actually imposed is allowed, and the term of minimum non-parole is varied to five and one half years.

Solicitors:
Crown Law Office, Wellington

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[1]	Scott Blackmore was charged with the murder of Lisa Bronwyn Blackmore, by stabbing her at Christchurch on 13 October 2003.
[2]	At his trial in the High Court Mr Blackmore was found not guilty of murder but guilty of manslaughter.
[3]	On 17 December 2004 Mr Blackmore was sentenced to imprisonment for 11 years. He was ordered to serve a minimum period of imprisonment of two-thirds of that 11 years.
[4]	Mr Blackmore now appeals against that sentence on the grounds that it was manifestly excessive; he appeals against the imposition of a minimum non-parole period; and alternatively, he says that if a minimum non-parole period was justified, then the period actually set is, in all the circumstances of the case, too high.

[5]	Ms Lisa Blackmore had been Mr Blackmore’s de facto partner. They lived in Christchurch. Ms Blackmore left Mr Blackmore in April of 2003. She went to the West Coast for a time. She then returned to Christchurch. She endeavoured to keep her whereabouts from Mr Blackmore.
[6]	The Blackmores had two young children. There had been ongoing disputes between them as to the custody of these two children. The care of the children had fallen largely to Mr Blackmore. Undoubtedly Mr Blackmore had a sense of "frustration and despair" as the High Court Judge (Chisholm J) termed it, about the children’s wellbeing, and was concerned to settle the future arrangements for their care.
[7]	Mr Blackmore suffered from a mild to moderate depressive disorder. He attempted to take his own life a little over a week before the incident which led to this trial. Chisholm J accepted that, at the time of the incident which led to Ms Blackmore’s death, Mr Blackmore was also vulnerable because of a drug he was taking for another medical condition. He had consumed alcohol, and the Judge appears to have accepted that there were some lingering effects of carbon monoxide on Mr Blackmore resulting from his suicide attempt.
[8]	Mr Blackmore found out that Ms Blackmore had returned to Christchurch. He discovered that she was staying with two friends. On the day of the murder, he made several telephone calls to the apartment where Ms Blackmore was staying. It seems that Mr Blackmore wanted Ms Blackmore to go to his residence to talk about custody of the children that evening. The tenor of the phone calls appears to have been such that Ms Blackmore was concerned, and decided to bring her car in off the street and park it out the back of the apartment. There was evidence that the occupants attempted to secure the apartment. They telephoned a friend who lived just around the corner. It was suggested that if he should receive "a hung-up phone call - the phone rings once", "just to come around". This precautionary step was taken in the middle of the telephone exchanges to which we have referred.
[9]	Mr Blackmore’s last phone call was taken by one of Ms Blackmore’s friends. She advised Mr Blackmore that Ms Blackmore did not wish to speak to him. It was relayed to Mr Blackmore that the issues about the custody of the children would have to "go to court". This was some time before 7.00pm.
[10]	Some three hours later, the occupants heard the back door open. Mr Blackmore came into the residence. He had a knife taped to his wrist, but protruding in such a manner that the knife could be utilised.
[11]	Ms Blackmore and her two friends were sitting when Mr Blackmore entered the room. The knife was observed. One of the occupants endeavoured to get the knife off Mr Blackmore, but failed.
[12]	When she saw Mr Blackmore enter the room, Ms Blackmore had got up and moved towards a sliding door in the lounge to pass through it, and avoid him. That door had been locked. Mr Blackmore pinned Ms Blackmore up against it. Mr Blackmore told the other two women to go and sit on the couch, and one of them gave evidence that Mr Blackmore said "that he was going to kill Lisa". Ms Blackmore was screaming and being pushed down towards the floor.
[13]	The other two women rushed out of the house to try and get assistance. When one of these women reached a neighbour’s house Ms Blackmore was apparently still screaming. This witness also said that, before she decamped to try and get help, she heard this: "I am sure she said something like, ‘don’t Scott, I’ll talk’, or something like that". This witness said that Ms Blackmore was still screaming at the time the police were contacted. The screaming stopped, she said, not long before the police arrived.
[14]	When the apartment was entered by the police, Ms Blackmore was found to have been stabbed once, in the back. This stab wound had been administered with such force that an artery had been severed by this single strike.
[15]	The defence at trial was run on two grounds: lack of intent to kill, and provocation. In the result, the jury returned a verdict of manslaughter, rather than murder. On the sentencing, Chisholm J recorded as his view, that provocation was the instrumental factor which had led to the jury verdict as returned. He remarked, that this level of provocation had to have been "just about as low as it could have been". It is also conceivable that the verdict may have been a merciful one.
[16]	Before us, Mr Eaton submitted that, having regard to the "tortuous background" of the appellant, the suicide attempt the previous week, and the inability of Mr Blackmore to discuss child custody access issues with Ms Blackmore that evening, what emerged was "a picture of a highly distressed and desperate father who was simply not coping". He suggested that Mr Blackmore did not go around to the particular address to kill Ms Blackmore, however he did snap and lose self-control, but only when it became apparent that those present "were not prepared to stay and talk to him about child custody and access issues".
[17]	It is apparent that the High Court Judge, who had presided over this trial for some eight days and who had heard all the evidence, took a less benign view of what had occurred. The Judge acknowledged the difficulties which had afflicted Mr Blackmore’s life, but on the evidence which had been before him, it was entirely open to him to say, as he did, that this case was about as near as it was possible to get to murder without labelling it as such. That must be so: there had been a very distinct period of time between the phone calls which had obviously upset Mr Blackmore; he had prepared himself for violence (admittedly in a bizarre way); he had come uninvited into the house through the back door; and notwithstanding that Ms Blackmore said she would talk, Mr Blackmore killed her with one powerful strike of the knife.
[18]	Mr Eaton skilfully endeavoured to persuade the Court that the incident should be seen in a less cold-blooded light, and as being more like a reactive sort of attempt by a very distressed man. That was not the view that the trial Judge appears to have taken of the facts. There is no basis on which this Court, without the overwhelming advantage of having been present at the trial, can interfere with the view that the Judge took of the incident that evening.

[19]	As we have noted, the Judge felt the case fell "towards the murder end of the scale". He also noted the premeditation (as evidenced by Mr Blackmore bringing a knife with him to the victim’s address); the fact that the case involved domestic violence and a home invasion; the level of callousness; and Mr Blackmore’s previous convictions for violent offences.
[20]	The Judge weighed, as mitigating factors, and other factors in Mr Blackmore’s favour, his willingness to plead guilty to manslaughter (although the Judge considered that this was diluted by the fact that a conviction of at least manslaughter was "virtually inevitable"); Mr Blackmore’s ongoing depressive disorder; the care he had provided to his children over the past years; and his remorse.
[21]	The Judge concluded that a starting point of 13 to 14 years imprisonment was appropriate. Credit was extended for the mitigating factors, and the Court imposed a sentence of 11 years imprisonment.
[22]	As to a minimum non-parole period, the Judge considered the case in terms of s 86 of the Sentencing Act 2002, as it stood prior to a recent amendment, viz:

[24]	For the appellant, Mr Eaton covered the ground very thoroughly in his submissions. He said everything that could have been said for the appellant.
[25]	Counsel rightly recognised that the essential task of a sentencing Judge in a case of manslaughter is to fix on the level of culpability, there being nothing approaching a tariff or benchmark in cases of this kind.
[26]	It does no injustice to the submissions to say that they emphasised the tragic background, and consequences, of the case; and Mr Eaton emphasised that this was really a "momentary loss of control" type of case, under great stress and the particular circumstances of the hour. He said the killing was not a brutal or callous one. Only a single knife strike was inflicted, and regrettably it had the effect of severing an artery.
[27]	Mr Eaton further submitted that, having regard to the range of sentences for manslaughters, and in particular other domestic manslaughters, this was not one of the more culpable cases. He suggested that a sentence of 11 years imprisonment was at the higher end of the scale.
[28]	Mr Eaton submitted that this was not a case for a minimum period of imprisonment, and certainly not one for the period actually imposed.

[29]	We agree with the Crown submissions that the starting point in this case must be that this was an instance which fell close to the murder end of the scale.
[30]	Once it is accepted that the offending was at the upper end of the manslaughter scale, it is necessary to have regard to what the starting point should be.
[31]	This is not a case in which there has been a homicide in the context of other serious offending such as drug dealing or robbery or where there was particular brutality, which might well attract a condign sentence.
[32]	As to authorities in this Court, in O’Sullivan CA340/93 15 December 1993 the Court there held that a manslaughter (by sniping) could attract an effective sentence of ten years imprisonment (as being at the (then) upper end of the range).
[33]	In Leonard CA269/95 6 September 1995, a sentence of 15 years in the context of another domestic incident involving a stabbing was not disturbed. Gault J said:

[35]	Mr Eaton complained that the sentence actually imposed was out of line, in particular, with another sentencing decision of Chisholm J in R v Jarman HC CHC T81/02, 1 August 2003, where a sentence of nine years imprisonment for manslaughter with a minimum non-parole period of six years had been imposed in another altercation in which a man associated with the accused’s wife was shot to death (including being shot in the genitals whilst he was lying wounded, on the ground). But again that case was entirely dependant upon its own factual context, and Chisholm J was very well placed to compare the relative culpability in the two cases.
[36]	We are not disposed to interfere with the sentence of 11 years imprisonment in this case. This was a quite deliberate intrusion with, at best, a low level of provocation. It was very close to murder. The sentence - though firm - was one which was available to the Judge.
[37]	We add that, in fairness to the appellant, we have looked to see whether the New Zealand sentences are comparable with those imposed in other jurisdictions. In England, in its valuable consultation paper, Sentencing of Manslaughter by Reason of Provocation (2004), the Sentencing Advisory Panel summarised the following range of sentences in more than 50 cases (between July 2000 and June 2003) where there had been manslaughter by reason of provocation (at 10).
[38]	This particular reference arose out of one by the Home Secretary under s 81(3) of the Crime and Disorder Act 1998 by reason of governmental concern that:

[42]	The parties approached this appeal on the basis that s 86 of Sentencing Act 2000 applies, as it stood prior to the amendments to that provision in 2003. On that footing, R v Brown [2002] 3 NZLR 670 is the leading authority.
[43]	As this Court there noted, the section provides a mechanism to constrain the outcome where the offending is so serious that release after one-third of a sentence "would plainly constitute an insufficient response in the eyes of the community, even though there may be no ongoing safety risk" ([28]). Further, "It must be a matter for judicial judgment whether the "sufficiently serious" threshold [posed by that provision] is crossed". Essentially, the test is one of the culpability of the appellant ([28]). The focus, in deciding to impose a minimum term, is on the circumstances of the offence (not the offender) ([28]).
[44]	Determining just what the minimum term should be has been recognised by this Court as a "difficult" exercise (Brown, at [39]). In general, it should reflect the seriousness of the offending and the circumstances surrounding it. We add that the term "seriousness" is determined by two main parameters: the culpability of the offender and the harm caused by the offence.
[45]	A trial Judge must carefully identify why that Judge considers a minimum parole period is appropriate, and how any resultant term was reached. We appreciate that this aspect of a case often comes at the end of a relatively lengthy (and fraught) sentencing, the relevant considerations often overlap with other aspects of the sentencing which the Judge has already traversed, and the exercise is inherently difficult. That said, this aspect of a case is of the greatest significance to the public and a prisoner, and appellate review is rendered difficult if this aspect of a case is dealt with in only a sentence or two, as was the case here in this instance.
[46]	As to whether a minimum non-parole period was appropriate in this case, the Judge said the "one thing" that took the case out of the ordinary run was "the home invasion aspect", and also, that the killing was "callous".
[47]	We can dispose of the latter point first. It cannot be said that this was, in the usual sense of that term at any rate, a "callous" killing. Every murder is, in a real sense, "brutal" or "callous", but this case had none of the features with which all Judges are sadly only too familiar in homicide cases today.
[48]	The Judge seems to have used the compendious expression "home invasion aspect" to cover several features of this case. Mr Blackmore - involved in domestic issues over custody - took things into his own hands. Armed, he unlawfully entered a home, terrorised the deceased, and the occupants, and then killed Ms Blackmore even when she said she would talk to him. Mr Blackmore was not entitled to take matters into his own hands in that way, however "provoked" he felt. A killing in the course of an endeavour to enforce one’s own way of seeing things in a dispute of this character cannot be said to be in the "ordinary" range of manslaughter. In the result, we are unanimous that the Judge was right to impose a minimum non-parole period.
[49]	Whether the actual period of minimum non-parole imposed was too high has given us some real difficulty. The first point to note here - with the focus on the offence - is that this was very serious offending. The second point is that the Full Court of this Court made it plain in Brown that there is no element of double punishment in fully weighing seriousness both on the imposition of the sentence, and in considering the minimum term. As Gault P said, "The seriousness of the offending necessarily must be considered in the assessment of each" (at 679, line 17).
[50]	A majority of the panel have come to the view that the period imposed was longer than was necessary and the reasons articulated by the Judge were an insufficient basis for imposing the maximum possible minimum term. This was not the worst case of its kind, even after taking into account that domestic killings are as serious as any other killings.
[51]	The majority Judges would therefore allow the appeal, on this point only, and substitute a minimum non-parole period of five and one half years.
[52]	One member of the panel would not have disturbed the minimum period imposed, for five reasons: the focus must be primarily on the nature of offence, rather than the offender; when so considered, this offending could be characterised as a "worst case" - it had the elements of deliberate carrying of a knife, home invasion, and fatal violence to settle a domestic dispute; the seriousness of the offence itself must (again) be given full weight in the decision on the term to be imposed; domestic violence cases should receive no less a sentence than non-domestic cases; and that it has not been shown the sentencing Judge was "plainly wrong" in that the term may be stiff, but it is not one which should be interfered with.