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WALSH v R [2005] NZCA 104 (19 May 2005)

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WALSH v R [2005] NZCA 104 (19 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA281/04

THE QUEEN

v

MATTHEW ALBERT WALSH

Hearing: 13 April 2005

Court: Anderson P, William Young and Chambers JJ

Counsel: R G Glover for Appellant
E M Thomas and M F Laracy for Crown

Judgment: 19 May 2005

JUDGMENT OF THE COURT

A The appeal against the order that the appellant must serve a minimum period of imprisonment of 13 years is allowed.
B In substitution therefor, this court orders that the appellant must serve a minimum period of imprisonment of 111/2 years.

REASONS

(Given by Chambers J)

Minimum period of imprisonment for murder

[1] In June last year, Matthew Walsh pleaded guilty to murdering Donald Linwood on 4 January 2004 at Mr Walsh’s home in Methven.
[2] On 8 July last year, Fogarty J sentenced Mr Walsh to life imprisonment for murder. He ordered Mr Walsh to serve a minimum period of imprisonment of 13 years.
[3] Mr Walsh has appealed against that order. His counsel, Mr Glover, has submitted to this court the order was manifestly excessive and wrong in principle and that the minimum period should have been ten years’ imprisonment.

Issues on the appeal

[4] Three issues arise on this appeal. The first is whether the Judge should have applied s 103 of the Sentencing Act 2002 as originally enacted or as amended in 2004. The Judge applied what we shall call "the new s 103", but Mr Glover now contends that the old s 103 should have been applied. Section 103 of the Sentencing Act is the section under which judges determine the appropriate minimum period of imprisonment ("MPI") a murderer must serve.
[5] The second issue is whether the Judge was correct in concluding that mitigating factors as set out in s 9(2) of the Sentencing Act were irrelevant in determining the MPI under s 103. The Judge concluded that s 103 was self-contained. Mr Glover challenged that conclusion. In particular, he submitted that the Judge should have given a discount for the guilty plea, a recognised mitigatory factor under s 9(2)(b) of the Sentencing Act.
[6] Once those two issues should be determined, a third issue would then arise: what was the appropriate MPI in this case?
[7] We shall deal with those issues in turn.

The old or the new s 103?

[8] Section 103 as originally enacted read as follows:

(1) If the court does not impose a minimum period of imprisonment under this section, an offender sentenced to imprisonment for life for murder will serve a minimum period of imprisonment of 10 years as provided in section 84(3) of the Parole Act 2002.

(2) If a court sentences an offender convicted of murder to imprisonment for life, it may, within 28 days of the imposition of the sentence, on the application of the prosecutor or on its own motion, also order that the offender serve a minimum period of imprisonment of more than 10 years.

(3) The court may impose a minimum period of imprisonment of more than 10 years if it is satisfied that the circumstances of the offence are sufficiently serious to justify doing so.

(4) The duration of the minimum period of imprisonment imposed under this section must be the minimum period of imprisonment that the court considers to be justified having regard to the circumstances of the case, including those of the offender.

(5) 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.

(6) If the court makes an order under this section, it must give written reasons for doing so.

(7) This section is subject to section 104.

[9] Section 104 is not directly relevant in this case, as the Judge did not find that the circumstances of this murder were such as to bring the case within its purview.
[10] Section 103 was amended by s 12 of the Sentencing Amendment Act 2004. The new s 103 reads as follows:

(1) If a court sentences an offender convicted of murder to imprisonment for life it must order that the offender serve a minimum period of imprisonment under that sentence.
(2) The minimum term of imprisonment ordered may not be less than 10 years, and must be the minimum term of imprisonment that the court considers necessary to satisfy all or any of the following purposes:

(a) holding the offender accountable for the harm done to the victim and the community by the offending:
(b) denouncing the conduct in which the offender was involved:
(c) deterring the offender or other persons from committing the same or a similar offence:
(d) protecting the community from the offender.
(7) This section is subject to section 104.
[11] The Sentencing Amendment Act 2004 was passed on 6 July 2004 and came into force on 7 July 2004, the day before Fogarty J sentenced Mr Walsh. The position was, therefore, that, at the date of Mr Walsh’s offending, the old s 103 was in force, but by the time he came to be sentenced, there was a new s 103. In those circumstances, does one apply the old s 103 or the new? Fogarty J opted for the latter. In fairness to His Honour, we should note that there appears to have been no dispute before him on this topic. The amendment no doubt had caught both judge and counsel somewhat by surprise.
[12] The 2004 Act made a similar amendment to s 86 of the Sentencing Act, the s 103 equivalent for non-murder offending. The same issue as the present one in terms of s 86 has, since the sentencing in the present case, been the subject of decision in this court. In R v Chadderton CA345/04 6 December 2004, this court held that s 6 of the Sentencing Act required the application of the former law: at [14]. This court held that the circumstances in which increased minimum sentences could be justified had been widened by the new s 86. As a consequence, the old law with "the lesser penalty" should apply.
[13] Given the close congruence between the changes made to s 86 and the changes made to s 103, the principles applied in Chadderton would necessitate the application of the old s 103 in Mr Walsh’s case. The crucial change made to both s 86 and s103 is that a higher minimum term must now be imposed if the court considers that necessary for the purpose of "protecting the community from the offender". That purpose had not been a purpose of the old s 86, at least as that section was interpreted by this court in R v Brown [2002] 3 NZLR 670. Mr France (as he then was), appearing for the Crown in Chadderton, summed up the difference between the old s 86 and the new in this way: op cit at [9]:

The primary change effected by the amendment to s 86 is probably [the addition of] s 86(2)(d) which appears to require reassessment of R v Brown [2002] 3 NZLR 670. Brown emphasised that the focus of a s 86 inquiry was the circumstances of the offence; issues of protection of the public were reserved to the Parole Board. That approach no longer seems correct in light of the new s 86(2)(d).

[14] We agree with that summary, as did this court in Chadderton. But in the present case, Mr Thomas, for the Crown, adopted a much bolder approach. He submitted that the old s 86 and the new were effectively identical, as were the old s 103 and the new. Protection of the community from the offender was always a ground for an increased minimum sentence and Brown was wrong in not so finding. By this means, Mr Thomas argued that s 6 of the Sentencing Act was not engaged, as there had been no variation in penalty between the date of the offending and the date of sentencing. Mr Thomas continued that Chadderton was also wrongly decided in so far as it was based on a premise that the criteria under s 86 had changed. In support of this submission, Mr Thomas cited this court’s recent decision in Morgan v The Superintendent, Rimutaka Prison CA17/05 7 March 2005.
[15] We are not prepared to hold that Brown was wrongly decided. The decision was given by five members of this court and has since been cited and followed on numerous occasions, both in this court and lower courts. We think it inescapable that Parliament amended ss 86 and 103 because it considered that the criteria as originally expressed were too narrow. It intended more cases to be eligible for MPIs.
[16] We also consider that Chadderton was correctly decided. Its reasoning has subsequently been followed in this court by a differently constituted bench: R v Fisher CA347/04 17 December 2004 at [25].
[17] Neither of those cases was overruled or questioned in Morgan. Morgan was concerned with the effect of a change in parole eligibility during the course of a sentence. The majority held that that did not cause the engagement of either s 6 of the Sentencing Act or s 25(g) of the New Zealand Bill of Rights Act 1990. Those sections focus on changes in the law "between the commission of the offence and sentencing". In Morgan, the law change occurred after sentencing. Here, as in Chadderton and Fisher, the law change occurred before sentencing. That is a fundamentally different situation. Morgan does not necessitate a review of the reasoning in the earlier cases.
[18] We accordingly hold that Mr Walsh’s offending should have been considered under the criteria of the old s 103.

Mitigating factors under s 103

[19] The next issue concerns how mitigating factors are taken into account (if at all) on a s 103 inquiry.
[20] Fogarty J focused on the four purposes in the new s 103(2). He concluded that they were the sole criteria to be considered. The sentencing judge was to ignore normal mitigating factors as set out in s 9: see Fogarty J’s reasons for sentence, HC TIM CRI-2004-009-000156 8 July 2004 at [8]-[10] and [27].
[21] Mr Glover submitted that the length of the MPI had to "be determined by reference to all the provisions of ss 7, 8 and 9".
[22] Mr Thomas did not seek to support Fogarty J’s view that normal mitigating factors were to be ignored. He accepted that they could be relevant insofar as they impacted upon the purposes necessitating an MPI. If that submission were considered to be contrary to the reasoning in Brown, then, in Mr Thomas’s submission, Brown required reconsideration.
[23] Although Mr Glover’s submission may not have had quite the subtlety of Mr Thomas’s, we consider there is no real difference between them. We accept counsel’s submission. We respectfully disagree with Fogarty J’s reasoning on this point.
[24] The structure of the Sentencing Act is this. Section 7 sets out the purposes for which a court may sentence or otherwise deal with an offender. Section 8 sets out the principles to be applied in sentencing or otherwise dealing with an offender. Section 9 then sets out aggravating and mitigating factors which must be taken into account "in sentencing or otherwise dealing with an offender, ... to the extent that they are applicable in the case". Not every mitigating factor would be relevant to every purpose. For example, it is hard to see how a plea of guilty – a mitigating factor under s 9(2)(b) - could be relevant to the purpose of protecting the community from the offender: s 7(1)(g). But a plea of guilty would be relevant to the purpose of promoting in the offender a sense of responsibility for, and an acknowledgement of, the harm done to the victim and the community by the offending: s 7(1)(b). It would also be relevant to the purpose of deterrence and the purpose of the offender’s rehabilitation: s 7(1)(f) and (h).
[25] Under the old ss 86 and 103, as interpreted by this court in Brown, the purposes which required consideration were "punishment, deterrence and denunciation": at [36]. Those three purposes, which correspond with the purposes set out in s 7(1)(a), (e), and (f), have been carried across to the new ss 86 and 103. To them Parliament has now added a fourth purpose to be considered, namely that of protecting the community from the offender – a purpose also found in s 7(1)(g). Those four purposes are the purposes on which the court must focus when determining whether an order should be made under the new ss 86 and 103. (Obviously, protection of the community is not a purpose if one is applying the old ss 86 and 103.)
[26] The principles in s 8 and the aggravating and mitigating factors in s 9 are applicable to the extent that they are relevant to the three or four specified purposes. Clearly, a plea of guilty is relevant when determining what MPI is necessary to satisfy the purposes of denunciation and deterrence. As the Crown said in its submissions:

For example, the need for individual deterrence is inevitably modified by a guilty plea made in circumstances which show an insight into the offending.

[27] We do not consider that the above analysis conflicts with what this court said in Brown.
[28] The above discussion has focused on the old s 103, but the same logic will apply under the new s 103. It may well be, however, that mitigatory factors will have less significance under the new s 103 than they had under the old. That is because the new s 103 has introduced a purpose, namely protection of the community from the offender, which is in a different category from the other three purposes (originally delineated in Brown). If a court considers an MPI necessary for the purpose of protecting the community from the offender, then it may well be that a plea of guilty will not count for much. If the community needs protection, the community needs protection. This is an example of the way in which the new s 103 is potentially more onerous than the old s 103.

The appropriate minimum period of imprisonment

[29] Mr Glover accepted that this would have been an appropriate case for an uplift from the minimum ten year period but for the guilty plea. Absent the guilty plea, Fogarty J would have been justified in fixing a MPI of 11 to 12 years given the aggravating features of the offending. Mr Glover submitted, however, that the mitigating factors, in particular the plea of guilty, counterbalanced the aggravating factors. The standard MPI of ten years’ imprisonment (the default provision under the old s 103(1)) should have applied.
[30] Mr Thomas submitted that, even if there had been error in Fogarty J’s approach, the end result was nonetheless right. It is implicit in that submission that the judge could and should have adopted a higher starting point before allowing for mitigating factors.
[31] The facts were these. Sunday, 4 January 2004 was Mr Walsh’s 35th birthday. A dinner party was held as part of the celebration. Mr Linwood was among the guests. This was notwithstanding the fact that friction had existed for some time between Messrs Walsh and Linwood, arising from the fact that Mr Walsh believed that Mr Linwood had on an earlier occasion made inappropriate advances towards his (Mr Walsh’s) partner. Despite that, intermittent contact took place between Messrs Walsh and Linwood, arising from the friendships that existed between their respective children and partners.
[32] At approximately 8.30 pm, after eating his dinner, Mr Walsh placed his plate on the kitchen bench and whispered to a female guest at the table, "I’m going to stab Don tonight." Mr Walsh then started laughing.
[33] At approximately 11 pm, Mr Walsh became agitated and starting pacing up and down in the kitchen area, yelling at Mr Linwood to leave the address. At that time Mr Linwood was sitting at the kitchen table with his 11 year old son. Mr Walsh then picked up a large skinning knife, measuring 300 mm in length. It had a curved blade, approximately 175 mm in length. Mr Walsh said to Mr Linwood, "I’m going to fucken stab you." He held the knife towards Mr Linwood.
[34] People present, fearing an imminent attack, yelled at Mr Linwood to leave. He got up and left, followed by his son. Mr Walsh went to follow. Others tried to restrain him, but he broke free and pursued Mr Linwood. Just outside the house he stabbed Mr Linwood twice from behind, causing him to slump to the ground.
[35] After stabbing Mr Linwood, Mr Walsh forcibly stomped on his head. He then went back inside the house, rinsed the knife, and returned it to its leather sheath in the kitchen cupboard.
[36] He then went outside again. He then dragged Mr Linwood, who was still conscious, across the front lawn and garden and over to the opposite side of the road. He left Mr Linwood lying in the gutter.
[37] Someone called an ambulance. But it was to no avail. Mr Linwood subsequently died in hospital.
[38] This murder undoubtedly had some significant aggravating features which would have necessitated an uplift from the default ten year starting point (excluding, for the moment, the guilty plea). The murder was premeditated. Mr Walsh’s actions were callous and brutal. We include in that description not only the stabbing but also Mr Walsh’s acts of stomping on Mr Linwood’s head and dragging him across the road, there to leave him in the gutter. A particularly serious and aggravating feature of the killing was that it was committed in full view of Mr Linwood’s 11 year old son – and, for that matter, Mr Walsh’s own 9 year old son. The effect on the victim’s family has been profound, as revealed by the victim impact statements. Mr Linwood’s son was too traumatised by what he saw even to participate in that process.
[39] Fogarty J, who, of course, ignored mitigating factors on the basis of his interpretation of the legislation, thought that a minimum period of 13 years’ imprisonment was appropriate.
[40] Mr Thomas referred us to three comparable cases involving increased minimum terms under the old s 103. They were R v Hoko CA420/02 30 June 2003 (15 years), R v Abraham CA139/03 28 October 2003 (13 years), and R v Harmer CA324/02 26 June 2003 (14 years). On the basis of a comparison of those cases and their individual circumstances, the majority considers that a 14 year starting point would have been appropriate here. William Young J would have been inclined to start a little higher.
[41] None of those cases, however, involved offenders who had pleaded guilty. What discount should be given on that account? This question has been recently considered in this court in R v Williams and Olson CA64/04 and CA117/04 20 December 2004. Both these cases fell within s 104, the section which deals with appropriate sentences in cases of especially serious murders. Both Mr Williams and Mr Olson had pleaded guilty to murder at an early stage. This court confirmed that a guilty plea was a mitigating factor under s 104, just as it is in other non-murder cases: at [71].
[42] In Mr Williams’s case, this court considered that "a substantially higher sentence than 17 years, perhaps even 20 years, might have been justified but for the mitigating factors": at [76]. The court noted that Mr Williams was "profoundly remorseful": at [79]. That was a mitigating factor under s 9(2)(f), but the court did not consider that remorse could "carry great weight in serious murder cases given the importance of deterrence and denunciation in sentencing for this level of offending": at [79].
[43] That left the plea of guilty. The court noted that the acknowledgement of offending was in the face of a very strong Crown case, which, the court said, lessened "the mitigating impact of the plea": at [81]. On the other hand, the court acknowledged that Mr Williams’s confession did bring an end to the search for his victim’s body and the widespread community and family concern over the uncertainty of what had happened to her. The court continued (at [81]):

It avoided the need for family members to give evidence and saved the state the expense of a full depositions hearing and trial. These factors justify a reduction in the minimum term at least to 17 years and raised the question of whether it would be manifestly unjust not to go further.

[44] In the end, the court concluded that Mr Williams’s offending could not jump the "manifest injustice" hurdle imposed by s 104. Accordingly, the discount for the guilty plea was capped at three years and a minimum period of imprisonment of 17 years was fixed.
[45] In Mr Olson’s case, the sentencing judge accepted that the case came within s 104. He considered that the guilty plea should be taken into account. The fact of the guilty plea made an MPI of 17 years manifestly unjust. He fixed an MPI of 15 years. Mr Olson did not appeal against the MPI of 15 years, but the Solicitor-General sought leave to appeal. This court concluded that the offending did fall within s 104 "by a narrow margin": at [90]. The starting point, before considering mitigating factors, was "a term of [not] much more than 17 years": at [90]. The principal mitigating factor was the early guilty plea. This court considered that, as in Mr Williams’s case, "its impact was lessened because of the inevitability of conviction": at [91]. The court also noted that there was an absence of remorse, which further limited the effect of the plea. The court approved the sentencing judge’s order of a 15 year term. Because Mr Olson had not appealed, the court did not need to consider whether a more significant discount should have been given.
[46] The law is tolerably clear as to the discount normally given for a guilty plea. There should be no distinction between the discount range on "headline" starting points and the discount range on "minimum period" starting points, provided that a discount is consistent with and promotes the relevant purposes of sentencing. Williams and Olson confirms that.
[47] We now turn to consider the mitigating factors relied on by Mr Glover. First was the plea of guilty. That is undoubtedly an important mitigatory factor, although here, as in Olson, its impact is lessened because of the inevitability of conviction, once a defence psychiatrist had ruled unsustainable any defence based on legal insanity. Further, the plea was not entered as early as it could have been.
[48] Mr Walsh says "he is sorry for his actions". It is somewhat difficult to judge, however, how truly remorseful he is.
[49] Mr Glover pointed to Mr Walsh’s traumatic background. While we note that, we do not consider that a mitigating factor. Mr Glover also referred to Mr Walsh’s alcohol and drug dependency and their effect on his behaviour. But that cannot be a mitigating factor: Sentencing Act, s 9(3).
[50] Mr Glover submitted that the homicide was not premeditated. Fogarty J rejected that. So do we. It is clear from the agreed statement of facts that Mr Walsh had been brooding about stabbing or killing Mr Linwood from much earlier in the evening.
[51] The only mitigating feature in this case worthy of consideration is the guilty plea. We consider it justifies a significant reduction. Mr Walsh’s plea does reduce the need for individual deterrence. His conduct, deplorable though it was, is mitigated at least to the extent that he has acknowledged his wrongdoing and thereby reduced the need for the victim’s family to endure a High Court trial. The need for punishment is also reduced. The mitigating factor is, in our view, consistent with the relevant purposes of sentencing under s 103.
[52] We substitute for Fogarty J’s MPI order of 13 years a new MPI order of 11 1/2 years.

Solicitors:
Crown Law Office, Wellington

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[1]	In June last year, Matthew Walsh pleaded guilty to murdering Donald Linwood on 4 January 2004 at Mr Walsh’s home in Methven.
[2]	On 8 July last year, Fogarty J sentenced Mr Walsh to life imprisonment for murder. He ordered Mr Walsh to serve a minimum period of imprisonment of 13 years.
[3]	Mr Walsh has appealed against that order. His counsel, Mr Glover, has submitted to this court the order was manifestly excessive and wrong in principle and that the minimum period should have been ten years’ imprisonment.

[4]	Three issues arise on this appeal. The first is whether the Judge should have applied s 103 of the Sentencing Act 2002 as originally enacted or as amended in 2004. The Judge applied what we shall call "the new s 103", but Mr Glover now contends that the old s 103 should have been applied. Section 103 of the Sentencing Act is the section under which judges determine the appropriate minimum period of imprisonment ("MPI") a murderer must serve.
[5]	The second issue is whether the Judge was correct in concluding that mitigating factors as set out in s 9(2) of the Sentencing Act were irrelevant in determining the MPI under s 103. The Judge concluded that s 103 was self-contained. Mr Glover challenged that conclusion. In particular, he submitted that the Judge should have given a discount for the guilty plea, a recognised mitigatory factor under s 9(2)(b) of the Sentencing Act.
[6]	Once those two issues should be determined, a third issue would then arise: what was the appropriate MPI in this case?
[7]	We shall deal with those issues in turn.

[9]	Section 104 is not directly relevant in this case, as the Judge did not find that the circumstances of this murder were such as to bring the case within its purview.
[10]	Section 103 was amended by s 12 of the Sentencing Amendment Act 2004. The new s 103 reads as follows:

(a)	holding the offender accountable for the harm done to the victim and the community by the offending:
(b)	denouncing the conduct in which the offender was involved:
(c)	deterring the offender or other persons from committing the same or a similar offence:
(d)	protecting the community from the offender.
(7)	This section is subject to section 104.
[11]	The Sentencing Amendment Act 2004 was passed on 6 July 2004 and came into force on 7 July 2004, the day before Fogarty J sentenced Mr Walsh. The position was, therefore, that, at the date of Mr Walsh’s offending, the old s 103 was in force, but by the time he came to be sentenced, there was a new s 103. In those circumstances, does one apply the old s 103 or the new? Fogarty J opted for the latter. In fairness to His Honour, we should note that there appears to have been no dispute before him on this topic. The amendment no doubt had caught both judge and counsel somewhat by surprise.
[12]	The 2004 Act made a similar amendment to s 86 of the Sentencing Act, the s 103 equivalent for non-murder offending. The same issue as the present one in terms of s 86 has, since the sentencing in the present case, been the subject of decision in this court. In R v Chadderton CA345/04 6 December 2004, this court held that s 6 of the Sentencing Act required the application of the former law: at [14]. This court held that the circumstances in which increased minimum sentences could be justified had been widened by the new s 86. As a consequence, the old law with "the lesser penalty" should apply.
[13]	Given the close congruence between the changes made to s 86 and the changes made to s 103, the principles applied in Chadderton would necessitate the application of the old s 103 in Mr Walsh’s case. The crucial change made to both s 86 and s103 is that a higher minimum term must now be imposed if the court considers that necessary for the purpose of "protecting the community from the offender". That purpose had not been a purpose of the old s 86, at least as that section was interpreted by this court in R v Brown [2002] 3 NZLR 670. Mr France (as he then was), appearing for the Crown in Chadderton, summed up the difference between the old s 86 and the new in this way: op cit at [9]:

[14]	We agree with that summary, as did this court in Chadderton. But in the present case, Mr Thomas, for the Crown, adopted a much bolder approach. He submitted that the old s 86 and the new were effectively identical, as were the old s 103 and the new. Protection of the community from the offender was always a ground for an increased minimum sentence and Brown was wrong in not so finding. By this means, Mr Thomas argued that s 6 of the Sentencing Act was not engaged, as there had been no variation in penalty between the date of the offending and the date of sentencing. Mr Thomas continued that Chadderton was also wrongly decided in so far as it was based on a premise that the criteria under s 86 had changed. In support of this submission, Mr Thomas cited this court’s recent decision in Morgan v The Superintendent, Rimutaka Prison CA17/05 7 March 2005.
[15]	We are not prepared to hold that Brown was wrongly decided. The decision was given by five members of this court and has since been cited and followed on numerous occasions, both in this court and lower courts. We think it inescapable that Parliament amended ss 86 and 103 because it considered that the criteria as originally expressed were too narrow. It intended more cases to be eligible for MPIs.
[16]	We also consider that Chadderton was correctly decided. Its reasoning has subsequently been followed in this court by a differently constituted bench: R v Fisher CA347/04 17 December 2004 at [25].
[17]	Neither of those cases was overruled or questioned in Morgan. Morgan was concerned with the effect of a change in parole eligibility during the course of a sentence. The majority held that that did not cause the engagement of either s 6 of the Sentencing Act or s 25(g) of the New Zealand Bill of Rights Act 1990. Those sections focus on changes in the law "between the commission of the offence and sentencing". In Morgan, the law change occurred after sentencing. Here, as in Chadderton and Fisher, the law change occurred before sentencing. That is a fundamentally different situation. Morgan does not necessitate a review of the reasoning in the earlier cases.
[18]	We accordingly hold that Mr Walsh’s offending should have been considered under the criteria of the old s 103.

[19]	The next issue concerns how mitigating factors are taken into account (if at all) on a s 103 inquiry.
[20]	Fogarty J focused on the four purposes in the new s 103(2). He concluded that they were the sole criteria to be considered. The sentencing judge was to ignore normal mitigating factors as set out in s 9: see Fogarty J’s reasons for sentence, HC TIM CRI-2004-009-000156 8 July 2004 at [8]-[10] and [27].
[21]	Mr Glover submitted that the length of the MPI had to "be determined by reference to all the provisions of ss 7, 8 and 9".
[22]	Mr Thomas did not seek to support Fogarty J’s view that normal mitigating factors were to be ignored. He accepted that they could be relevant insofar as they impacted upon the purposes necessitating an MPI. If that submission were considered to be contrary to the reasoning in Brown, then, in Mr Thomas’s submission, Brown required reconsideration.
[23]	Although Mr Glover’s submission may not have had quite the subtlety of Mr Thomas’s, we consider there is no real difference between them. We accept counsel’s submission. We respectfully disagree with Fogarty J’s reasoning on this point.
[24]	The structure of the Sentencing Act is this. Section 7 sets out the purposes for which a court may sentence or otherwise deal with an offender. Section 8 sets out the principles to be applied in sentencing or otherwise dealing with an offender. Section 9 then sets out aggravating and mitigating factors which must be taken into account "in sentencing or otherwise dealing with an offender, ... to the extent that they are applicable in the case". Not every mitigating factor would be relevant to every purpose. For example, it is hard to see how a plea of guilty – a mitigating factor under s 9(2)(b) - could be relevant to the purpose of protecting the community from the offender: s 7(1)(g). But a plea of guilty would be relevant to the purpose of promoting in the offender a sense of responsibility for, and an acknowledgement of, the harm done to the victim and the community by the offending: s 7(1)(b). It would also be relevant to the purpose of deterrence and the purpose of the offender’s rehabilitation: s 7(1)(f) and (h).
[25]	Under the old ss 86 and 103, as interpreted by this court in Brown, the purposes which required consideration were "punishment, deterrence and denunciation": at [36]. Those three purposes, which correspond with the purposes set out in s 7(1)(a), (e), and (f), have been carried across to the new ss 86 and 103. To them Parliament has now added a fourth purpose to be considered, namely that of protecting the community from the offender – a purpose also found in s 7(1)(g). Those four purposes are the purposes on which the court must focus when determining whether an order should be made under the new ss 86 and 103. (Obviously, protection of the community is not a purpose if one is applying the old ss 86 and 103.)
[26]	The principles in s 8 and the aggravating and mitigating factors in s 9 are applicable to the extent that they are relevant to the three or four specified purposes. Clearly, a plea of guilty is relevant when determining what MPI is necessary to satisfy the purposes of denunciation and deterrence. As the Crown said in its submissions:

[29]	Mr Glover accepted that this would have been an appropriate case for an uplift from the minimum ten year period but for the guilty plea. Absent the guilty plea, Fogarty J would have been justified in fixing a MPI of 11 to 12 years given the aggravating features of the offending. Mr Glover submitted, however, that the mitigating factors, in particular the plea of guilty, counterbalanced the aggravating factors. The standard MPI of ten years’ imprisonment (the default provision under the old s 103(1)) should have applied.
[30]	Mr Thomas submitted that, even if there had been error in Fogarty J’s approach, the end result was nonetheless right. It is implicit in that submission that the judge could and should have adopted a higher starting point before allowing for mitigating factors.
[31]	The facts were these. Sunday, 4 January 2004 was Mr Walsh’s 35th birthday. A dinner party was held as part of the celebration. Mr Linwood was among the guests. This was notwithstanding the fact that friction had existed for some time between Messrs Walsh and Linwood, arising from the fact that Mr Walsh believed that Mr Linwood had on an earlier occasion made inappropriate advances towards his (Mr Walsh’s) partner. Despite that, intermittent contact took place between Messrs Walsh and Linwood, arising from the friendships that existed between their respective children and partners.
[32]	At approximately 8.30 pm, after eating his dinner, Mr Walsh placed his plate on the kitchen bench and whispered to a female guest at the table, "I’m going to stab Don tonight." Mr Walsh then started laughing.
[33]	At approximately 11 pm, Mr Walsh became agitated and starting pacing up and down in the kitchen area, yelling at Mr Linwood to leave the address. At that time Mr Linwood was sitting at the kitchen table with his 11 year old son. Mr Walsh then picked up a large skinning knife, measuring 300 mm in length. It had a curved blade, approximately 175 mm in length. Mr Walsh said to Mr Linwood, "I’m going to fucken stab you." He held the knife towards Mr Linwood.
[34]	People present, fearing an imminent attack, yelled at Mr Linwood to leave. He got up and left, followed by his son. Mr Walsh went to follow. Others tried to restrain him, but he broke free and pursued Mr Linwood. Just outside the house he stabbed Mr Linwood twice from behind, causing him to slump to the ground.
[35]	After stabbing Mr Linwood, Mr Walsh forcibly stomped on his head. He then went back inside the house, rinsed the knife, and returned it to its leather sheath in the kitchen cupboard.
[36]	He then went outside again. He then dragged Mr Linwood, who was still conscious, across the front lawn and garden and over to the opposite side of the road. He left Mr Linwood lying in the gutter.
[37]	Someone called an ambulance. But it was to no avail. Mr Linwood subsequently died in hospital.
[38]	This murder undoubtedly had some significant aggravating features which would have necessitated an uplift from the default ten year starting point (excluding, for the moment, the guilty plea). The murder was premeditated. Mr Walsh’s actions were callous and brutal. We include in that description not only the stabbing but also Mr Walsh’s acts of stomping on Mr Linwood’s head and dragging him across the road, there to leave him in the gutter. A particularly serious and aggravating feature of the killing was that it was committed in full view of Mr Linwood’s 11 year old son – and, for that matter, Mr Walsh’s own 9 year old son. The effect on the victim’s family has been profound, as revealed by the victim impact statements. Mr Linwood’s son was too traumatised by what he saw even to participate in that process.
[39]	Fogarty J, who, of course, ignored mitigating factors on the basis of his interpretation of the legislation, thought that a minimum period of 13 years’ imprisonment was appropriate.
[40]	Mr Thomas referred us to three comparable cases involving increased minimum terms under the old s 103. They were R v Hoko CA420/02 30 June 2003 (15 years), R v Abraham CA139/03 28 October 2003 (13 years), and R v Harmer CA324/02 26 June 2003 (14 years). On the basis of a comparison of those cases and their individual circumstances, the majority considers that a 14 year starting point would have been appropriate here. William Young J would have been inclined to start a little higher.
[41]	None of those cases, however, involved offenders who had pleaded guilty. What discount should be given on that account? This question has been recently considered in this court in R v Williams and Olson CA64/04 and CA117/04 20 December 2004. Both these cases fell within s 104, the section which deals with appropriate sentences in cases of especially serious murders. Both Mr Williams and Mr Olson had pleaded guilty to murder at an early stage. This court confirmed that a guilty plea was a mitigating factor under s 104, just as it is in other non-murder cases: at [71].
[42]	In Mr Williams’s case, this court considered that "a substantially higher sentence than 17 years, perhaps even 20 years, might have been justified but for the mitigating factors": at [76]. The court noted that Mr Williams was "profoundly remorseful": at [79]. That was a mitigating factor under s 9(2)(f), but the court did not consider that remorse could "carry great weight in serious murder cases given the importance of deterrence and denunciation in sentencing for this level of offending": at [79].
[43]	That left the plea of guilty. The court noted that the acknowledgement of offending was in the face of a very strong Crown case, which, the court said, lessened "the mitigating impact of the plea": at [81]. On the other hand, the court acknowledged that Mr Williams’s confession did bring an end to the search for his victim’s body and the widespread community and family concern over the uncertainty of what had happened to her. The court continued (at [81]):

[44]	In the end, the court concluded that Mr Williams’s offending could not jump the "manifest injustice" hurdle imposed by s 104. Accordingly, the discount for the guilty plea was capped at three years and a minimum period of imprisonment of 17 years was fixed.
[45]	In Mr Olson’s case, the sentencing judge accepted that the case came within s 104. He considered that the guilty plea should be taken into account. The fact of the guilty plea made an MPI of 17 years manifestly unjust. He fixed an MPI of 15 years. Mr Olson did not appeal against the MPI of 15 years, but the Solicitor-General sought leave to appeal. This court concluded that the offending did fall within s 104 "by a narrow margin": at [90]. The starting point, before considering mitigating factors, was "a term of [not] much more than 17 years": at [90]. The principal mitigating factor was the early guilty plea. This court considered that, as in Mr Williams’s case, "its impact was lessened because of the inevitability of conviction": at [91]. The court also noted that there was an absence of remorse, which further limited the effect of the plea. The court approved the sentencing judge’s order of a 15 year term. Because Mr Olson had not appealed, the court did not need to consider whether a more significant discount should have been given.
[46]	The law is tolerably clear as to the discount normally given for a guilty plea. There should be no distinction between the discount range on "headline" starting points and the discount range on "minimum period" starting points, provided that a discount is consistent with and promotes the relevant purposes of sentencing. Williams and Olson confirms that.
[47]	We now turn to consider the mitigating factors relied on by Mr Glover. First was the plea of guilty. That is undoubtedly an important mitigatory factor, although here, as in Olson, its impact is lessened because of the inevitability of conviction, once a defence psychiatrist had ruled unsustainable any defence based on legal insanity. Further, the plea was not entered as early as it could have been.
[48]	Mr Walsh says "he is sorry for his actions". It is somewhat difficult to judge, however, how truly remorseful he is.
[49]	Mr Glover pointed to Mr Walsh’s traumatic background. While we note that, we do not consider that a mitigating factor. Mr Glover also referred to Mr Walsh’s alcohol and drug dependency and their effect on his behaviour. But that cannot be a mitigating factor: Sentencing Act, s 9(3).
[50]	Mr Glover submitted that the homicide was not premeditated. Fogarty J rejected that. So do we. It is clear from the agreed statement of facts that Mr Walsh had been brooding about stabbing or killing Mr Linwood from much earlier in the evening.
[51]	The only mitigating feature in this case worthy of consideration is the guilty plea. We consider it justifies a significant reduction. Mr Walsh’s plea does reduce the need for individual deterrence. His conduct, deplorable though it was, is mitigated at least to the extent that he has acknowledged his wrongdoing and thereby reduced the need for the victim’s family to endure a High Court trial. The need for punishment is also reduced. The mitigating factor is, in our view, consistent with the relevant purposes of sentencing under s 103.
[52]	We substitute for Fogarty J’s MPI order of 13 years a new MPI order of 11 1/2 years.