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The Queen v King [2006] NZCA 211 (11 August 2006)

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The Queen v King [2006] NZCA 211 (11 August 2006)

Last Updated: 15 August 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA71/06

THE QUEEN

v

CHRISTINE HELEN KING

Hearing: 27 July 2006

Court: Robertson, Goddard and Gendall JJ

Counsel: J M Ablett-Kerr QC and M J Phelps for Appellant
A Markham and E Lamont-Messer for Crown

Judgment: 11 August 2006 at 10.30am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1] In November 2005, the appellant stood trial in the Hamilton High Court charged with the murder of her husband, Wayne Roycroft, in November 1988. The sole issue at trial was whether the admitted culpable homicide was murder or manslaughter. The jury found Mrs King guilty of manslaughter. Ronald Young J, who had presided, subsequently sentenced Mrs King to four years and three months’ imprisonment. She appeals against sentence.

The factual background

[2] In sentencing, the Judge described the factual circumstances thus:

[3] You and the deceased commenced a de facto relationship approximately eight years before his death in 1988. There were two children born during this relationship and in addition you had two daughters from a previous marriage living with you.
[4] In November 1988 your family was living at Waihou. You worked at the local hotel doing cleaning and some bar work. That seems to have been the only or primary family income. The deceased does not appear to have been in regular employment. On the day of his death the deceased came home from the hotel in the early evening. There was some form of angry, but not physically violent, confrontation between the two of you. It is clear that he threatened you and you expected violence. He began verbally abusing you as you prepared to serve him his dinner. You had been in the habit of grinding up two to four sleeping pills into his food. I will deal with this circumstance as well as the past and questions of the deceased’s behaviour in a moment in these sentencing remarks. You said that at that stage you simply "lost it" and you ground up and put into his meal 30-plus sleeping pills you had had prescribed for you by your doctor. You served the meal to him. You watched him eat some of the meal and gave some thought to intervening but you decided not to do so when he continued his abuse. You left the room for a period, perhaps an hour or more. When you returned the deceased was having difficulty in breathing and you were near him when he died. The most probable reason for his death was the combination of the sleeping pills, his alcohol consumption and his asthma causing respiratory problems. After his death you dragged his body out of the house to a shallow grave that you had dug. He was buried in that grave for some years. Later you told the story to another partner who at least with your acceptance, if not your help, in identifying where the body was, dug the body up and burnt most of the deceased’s remains. The original area where the body was buried was ultimately concreted over. Very little of the deceased’s body has been recovered for a formal burial
[5] I am satisfied that the jury’s verdict was based on a rejection of your claim that you had no intent to kill but an acceptance that the killing was done with provocation. The question asked by the jury before delivery of the verdict illustrates the high probability of that. Of course it is my task to decide the basis on which you should be sentenced. I consider that the proper verdict was one of not guilty of murder by reason of provocation. I also would have rejected your claim that you did not intend to kill. Amongst a number of reasons, the fundamental proposition is that you knew yourself that two to four sleeping pills were adequate to ensure Mr Roycroft either went to sleep, or at least was rendered docile, thereby avoiding any violent outburst. Crushing and feeding him more than 30 sleeping pills in my view illustrated a clear intention to achieve quite a different end than simply putting him to sleep. While you denied, persistently, intending to kill him in your statement, I am satisfied that your actions here spoke louder than your words and your description of the way in which you felt at the time in my view supported such a finding of intent. I am satisfied, therefore, that you did intend to kill Mr Roycroft.

[3] Subsequently he concluded, on the issue of the degree of provocation:

[8] I accept, therefore, that the degree of provocation on that night in November 1988 and your reaction to it must be seen from the perspective of the past events and their profound influence upon you. I therefore overall assess a degree of provocation over the eight years, involving as it did violence towards yourself and your daughters and physical and emotional abuse, as being at the top end of a medium range of provocative conduct, and the provocative conduct on the day of the incident as being in the lower category but with that properly needing to be seen from the perspective of long-term physical and mental abuse.

[4] Having assessed the submissions which had been made by counsel before him, Ronald Young J concluded that a starting point of five years’ imprisonment was appropriate. He deducted nine months for the plea of guilty leaving an effective sentence of four years and three months’ imprisonment.

The appeal

[5] Nine grounds of appeal were identified, but for convenience Mrs Ablett-Kerr QC divided them into three groups:

(a) The Judge erred in his assessment of the starting point;

(b) The Judge erred in taking into account the lack of evidence of visits by the appellant to the doctor;
(c) The Judge failed to take into account separately from his assessment of the starting point, matters which would otherwise mitigate sentence.

Relevant guidance

[6] In a comprehensive written submission, Mrs Ablett-Kerr argued before us (as she had before the sentencing Judge) that, in line with the approach adopted by this Court in R v Edwards [2005] 2 NZLR 709 at [28], particular regard should be had to the work of the UK Sentencing Guideline Panel and the Sentencing Guideline Council. At the time of the High Court sentencing, the advice from the Sentencing Advisory Panel (Consultation Paper on Sentencing of Manslaughter by Reason of Provocation (11 March 2004)) was available and since then the Sentencing Guidelines Counsel has issued guidelines entitled Manslaughter by Reason of Provocation (November 2005).
[7] We accept that these two documents are particularly informative, but without a legislative direction we are not attracted to the wholesale implementation of their approach or conclusions into the New Zealand context in the all-embracing manner advocated by Mrs Ablett-Kerr.
[8] In an area as difficult as this, any assistance is of relevance and value, but we prefer to undertake the necessary analysis in the ways which have traditionally applied in this country with whatever assistance we can gain from comparable overseas experience.

The correct starting point

[9] The case was run at trial on the basis that there was no intention to kill, but if there was, provocation applied. In sentencing, Ronald Young J treated the case as one in which there was an intention to kill, but that it was manslaughter by reason of provocation. Mrs Ablett-Kerr did not challenge, before us, the Judge’s conclusion on this point.
[10] Mrs Ablett-Kerr took strong exception, however, to the finding noted at [3] that the overall degree of provocation was at the top end of a medium range of provocative conduct (this was a reference to the sentencing advice in the UK).
[11] Mrs Ablett-Kerr argued that the starting point should have been lower to reflect the effects of prolonged domestic violence on the minds of abused persons. She argued that, on the basis of the acknowledged sexual, physical and emotional violence perpetrated upon Mrs King and the physical and emotional violence perpetrated upon her children, the Judge should have classified this as falling within the highest degree of provocation.
[12] Counsel submitted that the jury’s verdict had to be interpreted as an acceptance that Mrs King had only acted as she did because she and her children were the victims of prolonged and serious domestic violence at the hands of the deceased which meant that she suffered not only physical injuries but a recognised psychiatric illness – post traumatic stress disorder (PTSD).
[13] Mrs King did not give evidence at trial, but the Judge specifically noted that he took into account what she had said in her statements to the police, the psychiatric and psychological evidence that was called and the evidence of the appellant’s daughters and other witnesses regarding the deceased’s character and conduct.
[14] Counsel placed substantial reliance on the evidence of Associate Professor Brinded which was not challenged at trial. Much of that assessment was predicated on the out of court self-reporting of the appellant. This frequently arises, but calls for caution when there is no evidential basis for the matters which the specialist accepts as established.
[15] Mrs Ablett-Kerr submitted that manslaughter cases involving provocation by domestic violence are of a less serious category than manslaughter cases involving "love triangles". We do not embrace any such generalisation being of the view that the particular circumstances must always be evaluated.
[16] Although Mrs Ablett-Kerr submitted it was a separate ground of appeal, her complaint that the Judge erred in taking into account the lack of evidence of visits by the appellant to the doctor, we see it rather as part of the overall circumstances which required assessment and evaluation.
[17] There was no evidence as to why Mrs King had not visited doctors more often or sought assistance. Any explanation is, therefore, speculative and we do not accept Mrs Ablett-Kerr’s submission that it necessarily follows that it was because of the violent and controlling nature of her relationship with the deceased.
[18] It is difficult to avoid the conclusion that the trial Judge, who had heard and seen all the witnesses and been involved in the total environment of the trial, was not best placed to assess whether this was or was not a factor which required to be considered. Certainly there is nothing before us which would suggest that it was necessarily an error to view that as a factor of relevance.
[19] In her written submissions, Mrs Ablett-Kerr did not place any particular emphasis upon what occurred following the death of the victim. She engaged in this issue in her oral presentation, but on the basis of the English approach that a starting point is determined and then post–offence behaviour is considered. She noted that the Guidelines indicated that this might be ‘aggravating’ or ‘mitigating’.
[20] We find it incomprehensible to suggest, in the circumstances of this case, that the post-offence behaviour was not either a very important factor in assessing the culpability in the initial offending, and/or a serious aggravating factor.
[21] It is not credible to argue that the administering of a bottle of pills, rather than a couple as had been her wont over a lengthy period of time, is to be considered as spur of the moment, breaking-point activity when she behaved as she did thereafter. Mrs Ablett-Kerr’s contention was that the subsequent actions and deception were to protect her children from where they might end up if she were confronted with her responsibility for the homicide. We do not find that a compelling argument when one looks at the level and degree of deliberate action to hide what had occurred for some 16 years.
[22] Even accepting that she might still have been labouring under PTSD, the Judge’s overall assessment of these factors is encapsulated when he said:

[14] I accept that there was a degree of premeditation here and that you did have opportunities to stop and prevent Mr Roycroft’s death but you chose not to do so. I accept that the premeditation involved some planning and preparation for the killing on the night that Mr Roycroft died. I accept that the immediate provocation was at the lower end of the scale, but that fact must be understood taking into account the whole of the background of your relationship with Mr Roycroft and the way he treated you and the children. I accept that he was, as I have said, sexually, physically and emotionally violent to you and physically and emotionally violent to the children. I accept that conduct occurred over a lengthy period of time and that it was in my assessment at the top end of medium level of provocative conduct by the deceased. I consider that your conduct in burying the deceased at the time, and later conduct when you at least played a part in the burning of the body is an aggravating feature and not excused by your motive, said to be to protect your children.

[23] We can find no basis upon which an appellate court could properly interfere with those findings or assessments. They are rooted in the totality of the evidence and were a clearly available assessment of all the competing factors which required attention.
[24] Mrs Ablett-Kerr, before Ronald Young J, had submitted a starting point short of imprisonment. The Crown argued that a sentence at the upper end of the second band in R v Taueki [2005] 3 NZLR 372 (that is, five to ten years) was required. The Judge rejected each and took what he described as a starting point of five years which, from what he subsequently did, must have included all aggravating and mitigating factors apart from the guilty plea.
[25] Without in any way minimising the insidious consequences of long-term domestic abuse and the paralysing effects which that can have, we are satisfied that five years’ imprisonment was a merciful assessment of the total circumstances and clearly within the available sentencing discretion.

Mitigating factors

[26] The third ground of appeal was the absence of a reflection of mitigating circumstances in the ultimate sentencing posed. Mrs Ablett-Kerr is correct when she submits that the Judge does not enter into a lengthy articulation of these issues, but our assessment of the starting point leaves no room for doubt that they must have been highly influential in the five year figure arrived at. All that he treated separately was the effect of the indication from an early stage that Mrs King accepted that what had occurred was culpable homicide and therefore manslaughter, but denied that it was murder.
[27] It appears clear that the trial was necessary because the appellant’s contention was that she had no murderous intent. Provocation was only ever a fall-back position. Having regard to not only what occurred at the time of the death but also before it for eight years, and after it for sixteen years, it is unsurprising that the Crown was unwilling to accept manslaughter because of the absence of murderous intent.
[28] As against that assessment, it could not be said that the allowance of nine months from the five year starting point was wrong in principle or inadequate. It is clear that the Judge was cognisant of all the relevant factors and his response was clearly available.

Result

[29] Accordingly we are not satisfied that the sentence has been shown to be manifestly excessive or wrong in principle. The appeal is accordingly dismissed.

Solicitors:
Crown Law Office, Wellington

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[6]	In a comprehensive written submission, Mrs Ablett-Kerr argued before us (as she had before the sentencing Judge) that, in line with the approach adopted by this Court in R v Edwards [2005] 2 NZLR 709 at [28], particular regard should be had to the work of the UK Sentencing Guideline Panel and the Sentencing Guideline Council. At the time of the High Court sentencing, the advice from the Sentencing Advisory Panel (Consultation Paper on Sentencing of Manslaughter by Reason of Provocation (11 March 2004)) was available and since then the Sentencing Guidelines Counsel has issued guidelines entitled Manslaughter by Reason of Provocation (November 2005).
[7]	We accept that these two documents are particularly informative, but without a legislative direction we are not attracted to the wholesale implementation of their approach or conclusions into the New Zealand context in the all-embracing manner advocated by Mrs Ablett-Kerr.
[8]	In an area as difficult as this, any assistance is of relevance and value, but we prefer to undertake the necessary analysis in the ways which have traditionally applied in this country with whatever assistance we can gain from comparable overseas experience.

[9]	The case was run at trial on the basis that there was no intention to kill, but if there was, provocation applied. In sentencing, Ronald Young J treated the case as one in which there was an intention to kill, but that it was manslaughter by reason of provocation. Mrs Ablett-Kerr did not challenge, before us, the Judge’s conclusion on this point.
[10]	Mrs Ablett-Kerr took strong exception, however, to the finding noted at [3] that the overall degree of provocation was at the top end of a medium range of provocative conduct (this was a reference to the sentencing advice in the UK).
[11]	Mrs Ablett-Kerr argued that the starting point should have been lower to reflect the effects of prolonged domestic violence on the minds of abused persons. She argued that, on the basis of the acknowledged sexual, physical and emotional violence perpetrated upon Mrs King and the physical and emotional violence perpetrated upon her children, the Judge should have classified this as falling within the highest degree of provocation.
[12]	Counsel submitted that the jury’s verdict had to be interpreted as an acceptance that Mrs King had only acted as she did because she and her children were the victims of prolonged and serious domestic violence at the hands of the deceased which meant that she suffered not only physical injuries but a recognised psychiatric illness – post traumatic stress disorder (PTSD).
[13]	Mrs King did not give evidence at trial, but the Judge specifically noted that he took into account what she had said in her statements to the police, the psychiatric and psychological evidence that was called and the evidence of the appellant’s daughters and other witnesses regarding the deceased’s character and conduct.
[14]	Counsel placed substantial reliance on the evidence of Associate Professor Brinded which was not challenged at trial. Much of that assessment was predicated on the out of court self-reporting of the appellant. This frequently arises, but calls for caution when there is no evidential basis for the matters which the specialist accepts as established.
[15]	Mrs Ablett-Kerr submitted that manslaughter cases involving provocation by domestic violence are of a less serious category than manslaughter cases involving "love triangles". We do not embrace any such generalisation being of the view that the particular circumstances must always be evaluated.
[16]	Although Mrs Ablett-Kerr submitted it was a separate ground of appeal, her complaint that the Judge erred in taking into account the lack of evidence of visits by the appellant to the doctor, we see it rather as part of the overall circumstances which required assessment and evaluation.
[17]	There was no evidence as to why Mrs King had not visited doctors more often or sought assistance. Any explanation is, therefore, speculative and we do not accept Mrs Ablett-Kerr’s submission that it necessarily follows that it was because of the violent and controlling nature of her relationship with the deceased.
[18]	It is difficult to avoid the conclusion that the trial Judge, who had heard and seen all the witnesses and been involved in the total environment of the trial, was not best placed to assess whether this was or was not a factor which required to be considered. Certainly there is nothing before us which would suggest that it was necessarily an error to view that as a factor of relevance.
[19]	In her written submissions, Mrs Ablett-Kerr did not place any particular emphasis upon what occurred following the death of the victim. She engaged in this issue in her oral presentation, but on the basis of the English approach that a starting point is determined and then post–offence behaviour is considered. She noted that the Guidelines indicated that this might be ‘aggravating’ or ‘mitigating’.
[20]	We find it incomprehensible to suggest, in the circumstances of this case, that the post-offence behaviour was not either a very important factor in assessing the culpability in the initial offending, and/or a serious aggravating factor.
[21]	It is not credible to argue that the administering of a bottle of pills, rather than a couple as had been her wont over a lengthy period of time, is to be considered as spur of the moment, breaking-point activity when she behaved as she did thereafter. Mrs Ablett-Kerr’s contention was that the subsequent actions and deception were to protect her children from where they might end up if she were confronted with her responsibility for the homicide. We do not find that a compelling argument when one looks at the level and degree of deliberate action to hide what had occurred for some 16 years.
[22]	Even accepting that she might still have been labouring under PTSD, the Judge’s overall assessment of these factors is encapsulated when he said:

[23]	We can find no basis upon which an appellate court could properly interfere with those findings or assessments. They are rooted in the totality of the evidence and were a clearly available assessment of all the competing factors which required attention.
[24]	Mrs Ablett-Kerr, before Ronald Young J, had submitted a starting point short of imprisonment. The Crown argued that a sentence at the upper end of the second band in R v Taueki [2005] 3 NZLR 372 (that is, five to ten years) was required. The Judge rejected each and took what he described as a starting point of five years which, from what he subsequently did, must have included all aggravating and mitigating factors apart from the guilty plea.
[25]	Without in any way minimising the insidious consequences of long-term domestic abuse and the paralysing effects which that can have, we are satisfied that five years’ imprisonment was a merciful assessment of the total circumstances and clearly within the available sentencing discretion.

[26]	The third ground of appeal was the absence of a reflection of mitigating circumstances in the ultimate sentencing posed. Mrs Ablett-Kerr is correct when she submits that the Judge does not enter into a lengthy articulation of these issues, but our assessment of the starting point leaves no room for doubt that they must have been highly influential in the five year figure arrived at. All that he treated separately was the effect of the indication from an early stage that Mrs King accepted that what had occurred was culpable homicide and therefore manslaughter, but denied that it was murder.
[27]	It appears clear that the trial was necessary because the appellant’s contention was that she had no murderous intent. Provocation was only ever a fall-back position. Having regard to not only what occurred at the time of the death but also before it for eight years, and after it for sixteen years, it is unsurprising that the Crown was unwilling to accept manslaughter because of the absence of murderous intent.
[28]	As against that assessment, it could not be said that the allowance of nine months from the five year starting point was wrong in principle or inadequate. It is clear that the Judge was cognisant of all the relevant factors and his response was clearly available.