R v Wihongi [2011] NZCA 592; [2012] 1 NZLR 775; (2011) 25 CRNZ 483 (28 November 2011)

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_1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA641/2010 [2011] NZCA 592

BETWEEN THE QUEEN Appellant

AND JACQUELINE ELAINE WIHONGI Respondent

Hearing: 14 July 2011

Court: O'Regan P, Arnold and Stevens JJ Counsel: F E Guy Kidd and M Cooke for Appellant

E R Fairbrother for Respondent

Judgment: 28 November 2011 at 10:30 AM

_{JUDGMENT OF THE COURT}

A Leave to appeal is granted.

2. The appeal is allowed. The sentence imposed in the High Court is quashed and a sentence of imprisonment for 12 years is substituted.

REASONS OF THE COURT

_{(Given by O‟Regan P)}

R V JACQUELINE ELAINE WIHONGI COA CA641/2010 28 November 2011

Table of Contents

Para No Introduction [1] Points on appeal [3] Procedure [6] Circumstances of the offending [8] Sentencing Judge’s approach [18] Fresh evidence [33] Did the Judge treat intoxication as a mitigating factor? [52] Did the Judge err in finding that Ms Wihongi did not

present a future risk of violence? [56]

Did the Judge err in finding the victim demanded

sex from Ms Wihongi? [60]

Was a departure from the presumption of life

imprisonment justified? [69]

Cognitive deficits [75] Battered defendant: history of abuse [83] Future risk of violent offending [89] Should there have been a longer finite term? [95] Minimum period of imprisonment? [99] Result [103]

Introduction

[1] The Solicitor-General seeks leave to appeal against the sentence of eight years imprisonment imposed on the respondent, Ms Wihongi, for murder. The principal issue arising in the proposed appeal is whether the sentencing Judge, Wild J, was right to impose a determinate sentence on Ms Wihongi, rather than sentence her to imprisonment for life. Under s 102 of the Sentencing Act 2002, imprisonment for life is required for offenders convicted of murder unless such a sentence would be “manifestly unjust”.

[2] There is no doubt that this is an important issue in respect of which leave should be given. Counsel for Ms Wihongi, Mr Fairbrother, accepted that. We therefore grant leave.

Points on appeal

[3] The Crown argues that Wild J should not have found that it would be manifestly unjust to impose a life sentence on Ms Wihongi given the circumstances of the offending and of Ms Wihongi as the offender. In particular, the Crown says:

(a) The Judge wrongly treated Ms Wihongi‟s intoxication as a mitigating

factor.

(b) The Judge was wrong to find that Ms Wihongi did not present a future risk of violence. We received further evidence on this aspect of the case.

(c) The Judge‟s finding that the victim demanded sex from Ms Wihongi

just before the stabbing was not founded on the evidence.

(d) The combination of Ms Wihongi‟s intellectual impairment and psychological condition did not, in the circumstances, justify a departure from the presumption of life imprisonment.

[4] As an alternative to that argument, the Crown argues that, even if a determinate sentence was the appropriate sentencing response in this case, the sentence of eight years was manifestly inadequate. The Crown says that a sentence of 15 years imprisonment was required.

[5] Before dealing with the substance of these matters, we briefly set out the procedural history and then describe the circumstances in which the murder was committed.

Procedure

[6] Ms Wihongi was found guilty of murder by a jury in the High Court at Napier on 24 June 2010. She was sentenced by Wild J on 30 August 2010.¹ The Solicitor-

¹ R v Wihongi HC Napier CRI-2009-041-2096, 30 August 2010 (Sentencing Notes).

General‟s appeal was filed on 28 September 2010, and was due to be heard on

3 February 2011. At that time, Mr Fairbrother advised that he intended to seek an extension of time to appeal against conviction on the basis that Ms Wihongi was not fit to stand trial. The hearing was therefore adjourned and the application for an extension of time was filed. However, it was subsequently abandoned.

[7] The matter then proceeded to a hearing on 14 July 2011. However it was not possible to deal with all the matters at that hearing because counsel for the Crown, Mrs Guy Kidd, wished to cross-examine the psychiatrist responsible for Ms Wihongi‟s psychiatric care, Dr Jacqueline Short, and Dr Short was out of the country. It was agreed with counsel that the hearing would proceed and the cross- examination of the Crown expert, Dr Brinded, by Mr Fairbrother would go ahead. Subsequently Crown counsel posed 24 questions for Dr Short which she answered in writing after her return to New Zealand. The written answers were filed with the Court on 15 September 2011 and further submissions from both counsel were received at the end of September.

Circumstances of the offending

[8] The circumstances of the offending were traversed in some depth in the sentencing notes of Wild J. What follows broadly adopts that summary.

[9] Ms Wihongi and the victim had been in a longstanding relationship. He was the father of five of her six children. However, they were not living together at the time of the victim‟s death. Ms Wihongi lived with four of her young children in a suburb of Napier. The victim had a house in another suburb of Napier which he shared with a man called Mr Paratene.

[10] On the morning of 5 June 2009, the victim and Mr Paratene went to Ms Wihongi‟s house. They spent the morning cleaning up her section and taking rubbish to the tip. They also took some rubbish to the tip for her neighbour, Mr Westcott. On the way back from the tip the victim and Mr Paratene stopped at the bottle shop and bought some liquor. They spent the afternoon drinking that liquor at Mr Westcott‟s house. A Mr Harris turned up at the drinks as well, as did

Ms Wihongi. An argument developed. It was between Mr Paratene and the victim, and Ms Wihongi. It seems that the argument was about money, and in particular the victim and Mr Paratene taking several thousand dollars from lump sum compensation Ms Wihongi had received from the ACC. There was evidence that Mr Paratene at one point shoved the victim who fell back on to the couch, and that the two men then took their argument outside. There was also evidence that Ms Wihongi left Mr Westcott‟s house angry, and spent some time sitting in Mr Harris‟ car outside on the street, while she calmed down. She then returned to her own house.

[11] Around 5 pm, Ms Wihongi and the victim were both back at Ms Wihongi‟s house. Ms Wihongi‟s daughter (whom we will call “A”), who was 11 at the time, said Ms Wihongi and the victim were arguing and shouting at each other – and that Ms Wihongi was angry. It seems that the argument about money was continuing. Ms Wihongi also said to several of the health professionals who examined her and prepared reports about her that the victim demanded to have sex with her before he left. Although Ms Wihongi and the victim had continued a sexual relationship after he moved to live in a separate house, it was said that she spurned his advances that evening because she was angry with him and also angry with Mr Paratene. Wild J accepted that the victim demanded sex from Ms Wihongi and that she refused. The Crown disputed that at sentencing and argued before us that Wild J was not entitled to make that finding. We will return to that issue later.

[12] A said that her father, the victim, then walked out of the house. She said that Ms Wihongi got a knife from the kitchen and followed him out holding the knife in her right hand. A said that, while Ms Wihongi and the victim were on the path outside the house, Ms Wihongi lunged at the victim stabbing him hard in the chest with the knife.

[13] Mr Paratene also witnessed that happening. Mr Paratene said that he heard

the victim go “Aaaah” and then say “Fuck, the bitch has stabbed me again”.

[14] Both A and Mr Paratene said that the victim then got into Ms Wihongi‟s

vehicle which was parked in her driveway, started it up and drove off. Mr Paratene

says that Ms Wihongi told him that she wanted to chase after the victim, because he had taken her car and because he was bleeding. Ms Wihongi and Mr Paratene got into Mr Paratene‟s car and drove off in search of the victim, with Mr Paratene driving.

[15] A short time later, they came across Ms Wihongi‟s car. It had crashed into a fence at an intersection not far from Ms Wihongi‟s home. The victim was still behind the wheel, slumped over it semi-conscious. By the time Ms Wihongi and Mr Paratene got there, people from nearby houses were already on the scene. Two of the people, both with medical training, were trying to help the victim. One of them said that Ms Wihongi came up to the car and was punching at the victim through the window. She said Ms Wihongi was trying to attack him. This witness said she had to ask other people to get Ms Wihongi away. They did this, but then Ms Wihongi came back and was seen punching at the windscreen and the bonnet. Ms Wihongi was later arrested by the police for a breach of the peace at the accident scene, and taken to the Police Station.

[16] Meanwhile A had picked up the knife used by Ms Wihongi to stab the victim from the grass verge near the letterbox. She had taken it inside and washed the blood off the knife and left it in the sink or on the kitchen bench. A then took her younger brother and sister to her friend‟s place at a nearby house, and from there rang Ms Wihongi‟s mother, who came and got the children.

[17] The pathologist who gave evidence at the trial said there were two stab wounds in the victim‟s chest. The fatal stab wound was about five centimetres deep. It severed the victim‟s mammary artery and also pierced one of his lungs. The victim died in hospital from blood loss consequent upon those injuries, despite emergency thoracic surgery to try and save his life.

Sentencing Judge’s approach

[18] After summarising the factual background to the offending, the Judge turned

to Ms Wihongi‟s personal circumstances.

[19] Ms Wihongi was 34 years old at sentencing. The Judge remarked on Ms Wihongi‟s initially happy upbringing and on the dramatic change in her fortune after she overdosed on painkillers at age 13 following an argument with her mother. The immediate pathological consequences of that overdose were that she could not speak or walk properly. Behavioural problems ensued. She dropped out of school. Alcohol abuse began from around that time. At age 14 she was sexually abused by a drug and alcohol counsellor. At 14 or 15 she was in a relationship with the victim‟s older brother, who prostituted her for drugs and money. It was through him that she met the victim. Her relationship with the victim was long, around 17 years, but tempestuous, with both drinking heavily and violence going both ways. For her part, Ms Wihongi had in the past stabbed him and thrown a bottle at him causing him to lose an eye.

[20] There was gang involvement. Ms Wihongi was gang-raped. She was subject to a home invasion, when, in front of her children, she was assaulted with a full bottle of beer. She was scarred around her neck from that episode.

[21] The Judge accepted as accurate Dr Chaplow‟s observation that Ms Wihongi‟s life since age 14 constituted a “history of victimhood”.

[22] The Judge then summarised the state of Ms Wihongi‟s mental health. She had significant cognitive impairment resulting from the overdose. Her ability to make judgements and to reason and plan was in the low to borderline range. She displayed residual, complex features of post traumatic stress disorder, and anxiety and depression dating from the rapes and home invasion. She had an alcohol abuse disorder.

[23] The Judge then acknowledged the terrible seriousness of murder. He said he was obliged to hold Ms Wihongi accountable and to denounce her actions accordingly. The Judge, however, considered that “the law largely does that for me by requiring a sentence of life imprisonment unless that is clearly unjust”.²

[24] The Judge referred to the victim impact statements of the victim‟s family.

[25] The Judge acknowledged Ms Wihongi‟s deep regret and distress about killing the victim. She had demonstrated considerable insight, accepted sole responsibility and tended to blame herself for the violence in the relationship. The Judge considered that a deterrent sentence was unnecessary because of the high unlikelihood of reoffending and that protecting the community was not an operative

consideration for similar reasons.³

[26] The Judge placed considerable weight on the aim of rehabilitation, Ms Wihongi was “a person who is both deserving of help, and who can be helped”.⁴

Although she had failed to avail herself of expert help after her overdose, Dr Short, the visiting forensic psychiatrist to the prison, had identified, without expressing prospects of success, what could be done to assist in Ms Wihongi‟s rehabilitation.

[27] Having outlined those circumstances, the Judge then turned to the question of life imprisonment. He referred to R v O’Brien,⁵ R v Rapira,⁶ and R v Mayes⁷ as acknowledgement by this Court that in some cases the discretion in s 102 of the Sentencing Act would be available. He then quoted this Court‟s caution in R v O’Brien that “[l]ow intellectual capacity unrelated to the mental elements of criminal responsibility is seldom likely to justify departure from the statutory presumption”.⁸

[28] The Judge then expressed his view that detailed comparison with other cases was inappropriate, but nonetheless considered that R v Mayes provided the closest comparison. He identified factors he considered distinguished R v Mayes from the matter before him. Those factors included the length and trauma of the relationship between Ms Wihongi and the victim; that Mr Mayes posed an ongoing risk; that he had acted in breach of bail conditions; that he had previous convictions; that the

_{killing he committed was callous and brutal; and that he demonstrated no remorse.}

³ _{At [30].}

⁴ _{At [32].}

⁵ _{R v O’Brien (2003) 20 CRNZ 572 (CA).}

⁶ _{R v Rapira [2003] NZCA 217; [2003] 3 NZLR 794 (CA).}

⁷ _{R v Mayes [2004] 1 NZLR 71 (CA).}

⁸ Sentencing Notes at [35]; quoting R v O’Brien at [36].

[29] The Judge then made an important finding – that Ms Wihongi‟s “impaired mental health did play a part in causing this murder”.⁹ That finding was based on the Judge‟s reading of the expert reports available, those of Dr Barry-Walsh, Dr Brinded and Dr Short as quoted by Dr Chaplow. The Judge acknowledged that to a degree the experts‟ opinions on the extent to which Ms Wihongi‟s mental impairment was causative were “equivocal” and even “speculative”.¹⁰ This finding was strongly disputed by the Crown before us and we will return to that issue later.

[30] The Judge then turned to the impact that alcohol consumption had played in the offending. He correctly acknowledged that he could not take the role of alcohol in the victim‟s murder into account by way of mitigation.¹¹ However he considered that alcohol abuse disorder was relevant as one of Ms Wihongi‟s impairments operating in a causative way. He observed Dr Chaplow‟s report of her dependency on alcohol for social interaction; the anxiety and depression that were concurrent

with alcohol abuse; the detrimental impacts of alcohol in disinhibiting Ms Wihongi and making her more irritated towards the victim; and its role in exacerbating her anger in response to the victim‟s request for sex.

[31] Four final points were re-emphasised: they were the lack of previous convictions for serious violence; the absence of any need for public protection; Ms Wihongi‟s deep remorse; and the real prospect of rehabilitation.

[32] Overall, the Judge considered that Ms Wihongi‟s impairments “played a part in [her] murdering the victim”.¹² In the Judge‟s view, that consideration, together with Ms Wihongi‟s other personal circumstances, meant it was manifestly unjust to impose a life sentence.

Fresh evidence

[33] The Judge had before him a considerable number of reports from health assessors about Ms Wihongi.

⁹ _{At [38].}

¹⁰ _{At [38]–[40].}

¹¹ At [41], citing Sentencing Act 2002, s 9(3) and R v Mayes at [33].

[34] The Judge was provided with an impairment assessment report of Dr Tanner dated 20 April 2009 (prior to Ms Wihongi‟s offending), which had been prepared for ACC. Dr Tanner found that the effect of the sexual abuse of Ms Wihongi by her counsellor when she was 14 and the rape when she was 19 had led to the development of post traumatic stress disorder. She found that Ms Wihongi had significant impairment in relation to activities of daily living, social functioning, concentration, persistence and pace, and adaptation. In regard to the last mentioned, she noted the alcohol abuse problem that Ms Wihongi had. Overall, her assessment was that Ms Wihongi was mentally impaired and that the sexual abuse she had suffered was a contributing cause of this.

[35] Dr Daniella, a clinical psychologist, prepared a neuropsychological report dated 18 September 2009. She reported that Ms Wihongi had likely sustained a brain injury as a result of the hypoxic episode after the attempted suicide by overdose. She found that her overall intellectual functioning was in the low average range, and she had several cognitive deficits, including low level verbal comprehension and reasoning, extremely low memory functioning and difficulty with executive functioning abilities. Dr Daniella did a follow up report on 13 August

2010.

[36] The defence commissioned a psychiatric assessment from Dr Barry-Walsh dated 9 October 2009. He concluded that Ms Wihongi had been substantially damaged by a combination of severe, psychologically traumatising events (particularly sexual abuse and the home invasion incident), brain damage from her drug overdose, and an adult history of frequent immersion in a chaotic and violent social milieu (the gang to which the victim belonged) including a reciprocally violent and abusive relationship with the victim. However, he advised that these impairments would not provide Ms Wihongi with a defence of insanity, and that Ms Wihongi was not unfit to be tried.

[37] Dr Barry-Walsh did a follow up report dated 11 August 2010, prior to sentencing, in which he confirmed his earlier diagnosis. He noted that Ms Wihongi had communicated to him feelings of anger and fear when the victim had demanded sex from her on the day of the offending. He said it was plausible that, given her

intoxication at the time, she had reacted in a violent fashion due to an overwhelming sense of anger, threat and fear driven by a combination of cognitive impairment, the effects of repeated trauma, personality dysfunction and the chaotic and conflicted relationship she had with the victim.

[38] The Crown commissioned a psychiatric assessment prepared by Dr Brinded dated 22 May 2010. He concluded that Ms Wihongi was a psychologically vulnerable person due to a combination of brain damage, subsequent psychological deficits and alcohol dependence. She was in a tempestuous and volatile relationship with the victim. He said that her impulsiveness and inability to control her emotions appeared to have led to many impulsive sexual experiences as well as frequent verbal altercations that had deteriorated into physical fighting with the victim. He said it appeared that a frequent previous pattern of behaviour had on this occasion escalated to tragic consequences.

[39] A further psychiatric assessment dated 12 August 2010 was prepared for the defence by Dr Chaplow. He concluded that Ms Wihongi had diminished cognitive functioning due to her brain injury arising from her suicide attempt. Although she had recovered from this, she still had cognitive defects as described by Dr Tanner. Her social reliance on alcohol use and her consequent disinhibition was related to this. He found she had a history of alcohol disorder. He also found that it was not unreasonable to suspect that she still had features of post traumatic stress disorder arising from the sexual abuse and home invasion incidents. However, he considered that she was fit to stand trial at the time of her trial.

[40] Dr Chaplow did a follow up report dated 24 August 2010, in which he quoted at length a report he had received from Dr Short, the visiting forensic psychiatrist to Arohata Prison who had responsibility for Ms Wihongi‟s treatment in prison. In that report, Dr Short noted that the events leading up to the offending had recreated to some extent circumstances similar to the traumatic home invasion experience by Ms Wihongi in 2004. Dr Short expressed the view that the victim‟s demand for sex would likely have had a significant impact on Ms Wihongi‟s already vulnerable mental health, and on the subsequent sequence of events. Dr Chaplow reiterated his view that Ms Wihongi had had a traumatised personal history culminating in a

complex post traumatic stress disorder, associated anxiety and depression and substance abuse disorder.

[41] In support of Ms Wihongi‟s position, Mr Fairbrother commissioned a further report from Dr Short dated 14 March 2011. In response to this, the Crown commissioned a further report from Dr Brinded dated 6 May 2011. We accepted these reports as evidence on the appeal by consent, and Dr Brinded was cross- examined before us. As mentioned earlier, Dr Short responded to questions from Crown counsel in writing after the hearing.

[42] Dr Short has been responsible for Ms Wihongi‟s care at the Rangipapa Medium Secure Mental Health Unit since 1 November 2010. Ms Wihongi was referred to this unit from Arohata Prison. Dr Short described the results of an MRI scan of Ms Wihongi‟s brain performed on 19 January 2011, which indicated bilateral frontal white matter lesions, as well as bilateral lesions in the basal ganglia, and bilateral atrophy of the inferior cerebellar folia. These findings were said to be in keeping with Ms Wihongi‟s history.

[43] Dr Short said that Ms Wihongi‟s mental health impairments were more disabling on her day-to-day functioning than the assessment provided to the sentencing Judge appeared to suggest. She added:

The impairments would also have impacted on those actions that resulted in the death of her partner and in my opinion, provide Ms Wihongi with significant mitigation.

This view is also expressed in the reports available to me and was, in my opinion, properly taken into account at sentencing, as reflected in the sentence of eight years imprisonment. Ms Wihongi is clearly making progress and I would be concerned if the length of her incarceration increased.

[44] Dr Short also commented on the role of alcohol in the offending. She said that it had been shown in a clinical setting that Ms Wihongi exhibited significant impairment of executive functioning memory in the absence of alcohol. She said that this then raised the question as to whether the contribution of the executive dysfunction and memory impairment at the time of the killing of the victim outweighed the relative contribution of alcohol. She said that the disinhibited and

apparently intoxicated behaviour of Ms Wihongi during her initial police interview after the offending amounted to behaviour similar to that which she had exhibited in the inpatient unit which was consistent with frontal lobe/executive dysfunction.

[45] Dr Brinded‟s further report commented on that of Dr Short. He noted the comment Dr Short had made about the fact that Ms Wihongi continued to exhibit significant impairment of executive functioning and memory in the absence of alcohol, and had questioned whether alcohol had had a significant impact on the offending. He said:

This is an important consideration particularly with respect to future risk... If the contribution of Ms Wihongi‟s executive dysfunction at the time she killed her partner outweighed the relative contribution of alcohol then the withdrawal of alcohol alone would not mitigate her risk since her risk of future violence would be considered to be more related to the effects of her brain damage.

[46] In relation to the sentencing Judge‟s observation that there was no need to

protect the public from Ms Wihongi, Dr Brinded said:

From a clinical perspective I would therefore feel that Ms Wihongi does present certain risks for future violence particularly in the context of new intimate relationships and possible return to the use of illicit substances. It is also well recognised that persons suffering from brain damage are more susceptible to irritability, anger and possibly violence when under the influence of illicit substances or alcohol. These risks need to be recognised in order for them to be managed in the future as without adequate risk management I believe Ms Wihongi may pose a risk to the community in the specific situations mentioned above.

[47] Dr Brinded clarified in his evidence-in-chief in this Court his assessment of the risk posed by Ms Wihongi. He said that the approach he takes as a psychiatrist is to look for risk factors and then see how those factors could be managed or ameliorated. In relation to Ms Wihongi he identified four risk factors, namely:

(a) Her past history of violence. This included the murder and also the previous episodes in which she injured the victim.

(b) Her drug and alcohol use.

(c) Her mixing with anti-social peers (namely the gang to which the victim belonged).

(d) Her brain damage, which meant that she had little frontal lobe function and executive functioning, which meant she could act compulsively.

[48] Dr Brinded acknowledged that risk prediction was “fraught with difficulty”. He saw the risk factors he had identified as elevating the possibility of future violence and he saw the most likely circumstances in which that would occur as being when those factors were at play.

[49] In her written answers to questions from Crown counsel, Dr Short commented as follows:

(a) In relation to past violence, she accepted there had been previous incidents of violence with the victim, but said that she did not believe there was any evidence indicating that Ms Wihongi was the primary aggressor in her violent relationship with the victim.

(b) In relation to drug and alcohol abuse, she noted that Ms Wihongi used alcohol to mask her disability. She accepted that a return to alcohol would worsen Ms Wihongi‟s brain damage and impair her ability to employ coping strategies in relation to her disability. She considered Ms Wihongi would need to remain abstinent for these reasons.

(c) In relation to gang involvement, she noted that mixing with gangs and anti-social peers increases the risk of being exposed to an environment conducive to violent behaviour. However, she said that clinical observation did not support the proposition that Ms Wihongi was anti-social in her values, attitudes or day to day behaviours.

(d) In relation to brain damage, she commented that when assessing

Ms Wihongi‟s present and future risk, her brain damage must be

considered a significant risk factor, particularly when combined with alcohol abuse and a state of increased emotional arousal, as pertained at the time of the murder.

[50] In summary, Dr Short agreed with Dr Brinded‟s statement that the consideration of future risk requires the identification of risk factors and the context in which those factors are more likely to occur. She said that it would be impossible to say that Ms Wihongi would not present a risk of future violent re-offending if sufficiently provoked by a violent individual in similar circumstances. She said the key was in managing that risk.

[51] Dr Short was asked about incidents of violence that had occurred in prison involving Ms Wihongi. She set out the explanation for these, one of which was that she was confronted by a woman who had been involved in the traumatic home invasion experienced by Ms Wihongi. It appears some provocation was involved. However Dr Short said there had been no incidents of physical violence since Ms Wihongi was admitted to the Rangipapa Medium Secure Mental Health Unit in November 2010. There have however been some incidents involving arguing with staff or swearing at them.

Did the Judge treat intoxication as a mitigating factor?

[52] The Judge drew a distinction between the impact of alcohol consumption and the impact of alcohol abuse disorder.¹³ He recognised that s 9(3) of the Sentencing Act does not allow alcohol consumption to be treated as a mitigating factor.¹⁴

However he took the view that her alcohol abuse was an impairment, citing Dr Chaplow‟s view that Ms Wihongi found it difficult to interact socially unless she was intoxicated or partially so. He noted a similar observation by Dr Brinded. The Judge then said:¹⁵

To summarise, I do not take account of your intoxication at the time by way of mitigation. I do take account of it as one of your impairments – alcohol

¹³ _{See above at [30].}

¹⁴ Sentencing Notes at [41].

abuse disorder – which operated in combination with your other impairments in a causative way.

[53] It appeared that the Judge considered that this approach did not infringe s 9(3), because it was not taking alcohol into account as a mitigating factor, but rather as an impairment which had had a causative impact on the offending. Mrs Guy Kidd argued that this was contrary to positions of this Court to the effect that alcohol and drug dependency and their effect on an offender cannot be a

mitigating factor in sentencing.¹⁶ Mrs Guy Kidd accepted that s 9(3) prevented the

voluntary consumption of alcohol being taken into account “by way of mitigation”, but pointed out that s 9(2), to which s 9(3) is an exception, refers to mitigating factors which may be taken into account “in sentencing or otherwise dealing with an offender”. She argued that this meant that the reference to “mitigation” included taking alcohol consumption into account in making a decision under s 102 of the Sentencing Act.

[54] We accept that the legislative intention of s 9(3) is to prevent the Court from taking into account alcohol consumption as a factor indicating a lower level of culpability. It is notable that s 9(3) is an exception to s 9(2)(e), which requires the Court to take into account as a mitigating factor “that the offender has, or had at the time the offence was committed, diminished intellectual capacity or understanding”. Thus, it is clear that the intention of the legislature is that, where the level of intellectual impairment at the time of the offending is affected by alcohol, the Court cannot take that into account. In our view this prevents the Court from taking into account alcohol consumption even where the consumption of the alcohol reflects an underlying alcohol abuse impairment or a compulsive consumption of alcohol. We therefore accept Mrs Guy Kidd‟s submission that the Judge erred in this respect.

[55] However, it has to be recognised in the present case that two different factors were at play: the underlying mental impairment of Ms Wihongi, and her consumption of alcohol, which is linked to that mental impairment. The fact that consumption of alcohol cannot be taken into account does not diminish the significance of Ms Wihongi‟s diminished intellectual capacity under s 9(2)(e).

Did the Judge err in finding that Ms Wihongi did not present a future risk of violence?

[56] The Judge expressed his view on future risk in unequivocal terms:¹⁷

However, a deterrent sentence is not needed here, nor does the community need to be protected from you. You have no previous convictions for violence and the information I have is that you do not currently represent a serious risk to other people. Further, the reports I have are unanimous in their view that the combination of things that led you to kill [the victim] is treatable.

[57] The Judge cited in support of this view the observation made by Dr Barry- Walsh in his report of 11 August 2010 that Ms Wihongi “does not currently represent a serious risk to herself or others” and also referred to Dr Chaplow‟s addendum report, though we were not able to identify the extract the Judge appeared to refer to.

[58] All of this is now subject to reconsideration because of the fresh evidence from Dr Brinded and Dr Short. We have already discussed this above, and we think it is clear from this evidence that it cannot be properly stated that Ms Wihongi does not present any future risk. Rather, Dr Brinded and Dr Short were in agreement that there are a number of risk factors in relation to Ms Wihongi which need to be managed. Dr Short accepted that it would be impossible to say Ms Wihongi would not be at risk of future violent re-offending if sufficiently provoked by a violent individual in similar circumstances to the events leading to the present offending.

[59] We conclude, based on our earlier analysis, that the evidence now before us establishes that the Judge was wrong to proceed on the basis that Ms Wihongi did not present any future risk. We accept that the position is as outlined to us by Dr Brinded and Dr Short, namely that risk assessment is notoriously difficult, but that there are clear risk factors at play in the case of Ms Wihongi as identified by Dr Brinded, and that these will need to be managed to prevent that risk from materialising. In particular, Dr Brinded and Dr Short agreed that Ms Wihongi would need to stay abstinent from alcohol, would need to avoid anti-social peers, particularly those associated with gangs, and would need to continue her therapy to

enhance her coping strategies in dealing with stressful situations, particularly in the context of intimate personal relationships.

Did the Judge err in finding the victim demanded sex from Ms Wihongi?

[60] In coming to the conclusion that Ms Wihongi‟s impaired mental health played a part in causing the murder, the Judge took into account the statements said to have been made by Ms Wihongi to Dr Barry-Walsh and Dr Short that the victim had demanded sex from her just prior to the offending. Mrs Guy Kidd said that there was no admissible evidence on which the Judge could have been satisfied that the demand for sex occurred, and therefore no proper basis for him to take it into account as a mitigating fact.

[61] In oral argument, both counsel accepted that whether the victim did or did not demand sex from Ms Wihongi immediately prior to his death was not a major factor in the sentencing. Its significance arises because the observations of a number of the health assessors from whom reports were obtained proceed on the basis that such a demand was made. We will deal with the arguments raised by counsel about the issue, but, in doing so, will bear in mind the reality that the issue is not crucial to the outcome of the appeal.

[62] The two eyewitnesses to the murder, Mr Paratene and A, did not refer to any demand for sex and were not asked about it at the trial. Both gave evidence that an argument was taking place between Ms Wihongi and the victim just prior to the murder, but neither could identify what was being said or what the basis of the argument was. Mrs Guy Kidd said that Ms Wihongi had not adduced evidence about the demand for sex for the purposes of the sentencing as contemplated by s 24(2) of the Sentencing Act.

[63] Ms Wihongi gave varying accounts of the events leading up to the offence. In particular:

(a) In Dr Barry-Walsh‟s first report, he reports that she told him that the victim had demanded sex from her and that she had rejected this. She

could recall feeling scared and angry. She told Dr Barry-Walsh that in the past when she declined to have sex with the victim, he would abuse her, push her around and demand to know who it was she wanted to have sex with if it wasn‟t him. She said this made her frightened.

(b) The Dr Brinded report said that Ms Wihongi had said that the victim sometimes forced himself sexually on her. However, she gave a version of events leading to the offending that did not include any reference to a demand for sex. When Dr Brinded pointed this out to her, she said that that is what they would have been arguing over, but that she was not clear that they were arguing and that it would not have accounted for what happened.

(c) In his second report, Dr Barry-Walsh again said that Ms Wihongi had told him that the victim had asked her to have sex prior to leaving. However, she had said that there had not been an argument about that. After further discussion with her about this, Dr Barry-Walsh recorded that he suspected that the account she first gave to him of feelings of anger and fear when the victim demanded sex was a possible and indeed likely proximate trigger for her actions.

(d) Dr Chaplow records in his report of 12 August 2010 that Ms Wihongi told him that she had spurned the victim‟s advances just before the offending. He then records her reporting an argument about the pay- out she had received from ACC and the victim‟s use of the car she had bought with some of that money.

(e) Dr Daniella reports that Ms Wihongi gave a varied and discrepant account of what had occurred. She said that Ms Wihongi denied having an argument but did state that the victim had wanted sex and she had said no to this.

(f) In his addendum report, Dr Chaplow quotes a report from Dr Short in which he describes Ms Wihongi‟s narrative of what had occurred at the time of the offending as “muddled”. There is no mention of a demand for sex in the account, but Dr Short does comment in her report that the victim‟s demand for sex would likely have had a significant impact on Ms Wihongi‟s already vulnerable mental health and on the subsequent sequence of events.

[64] It seems that, at sentencing, the fact that there was a dispute about this aspect of the case was not identified and thus the procedure in s 24 of the Sentencing Act was not invoked. The Crown memorandum on sentencing did set out that it did not agree that the victim had demanded sex from Ms Wihongi, noting that she had given inconsistent accounts. The defence submissions on sentence referred to this as a factor supporting a finding that a life sentence would be manifestly unjust.

[65] We accept Mrs Guy Kidd‟s submission that there was no evidence at the trial that a demand for sex had been made. On the other hand, the numerous references made to the demand for sex by Ms Wihongi in her interviews with health assessors could not be ignored by the health assessors in preparing their reports for the Court. If the matter had been raised under s 24 of the Sentencing Act, as would have been the correct process, the Crown would have faced the obligation of disproving this as a “mitigating fact”. It is not clear how the Crown could have discharged that burden, given that the two eye witnesses to the incident said they did not hear what was said between Ms Wihongi and the victim.

[66] Assuming Ms Wihongi had given evidence at the sentencing hearing that the demand for sex was made, the Crown could have cross-examined her, and it is hard to speculate what the outcome of that would have been. However, there is nothing implausible or obviously false in the suggestion that a demand for sex was made, given the history of the relationship between Ms Wihongi and the victim, and therefore no obvious reason to disbelieve this aspect of Ms Wihongi‟s account. It is true that her account has not been consistent, but her disability and the traumatic nature of the events associated with the claimed demand for sex do not make that necessarily indicative of any lack of veracity in the claim.

[67] We have considered whether we should remit the matter to the High Court so that a hearing can be undertaken in terms of s 24. But neither party sought a remission and, given our views that this is not a critical factor in the outcome of the appeal, we do not see that it is an appropriate step. In any event, we doubt that, if we were to do this, the Crown would be able to discharge the burden of disproving this mitigating fact.

[68] In the circumstances we propose to accept the opinions expressed by the health assessors which are, in some cases, based on a version of facts including the fact that a demand for sex was made. Accordingly, we do not consider that the Judge erred in concluding that such a demand occurred.

Was a departure from the presumption of life imprisonment justified?

[69] We now turn to the key issue in the appeal, namely whether it was manifestly unjust to impose a life sentence in the circumstances of this case.

[70] The approach to be taken for the purpose of determining whether it would be “manifestly unjust” to impose a sentence of life imprisonment for the purposes of s 102 was articulated by this Court in R v Rapira in the following terms:¹⁸

The test is that the sentence of life imprisonment is manifestly unjust. That conclusion has to be made on the basis of the circumstances of the offence and the offender. It is an overall assessment. The injustice must be clear, as the use of “manifestly” requires. The assessment of manifest injustice falls to be undertaken against the register of sentencing purposes and principles identified in the Sentencing Act 2002 and in particular in the light of ss 7, 8 and 9. It is a conclusion likely to be reached in exceptional cases only, as the legislative history of s 102 suggests was the expectation.

[71] The legislative intention is reflected in the speech of the responsible Minister, Hon Phil Goff at the first reading of the Sentencing and Parole Reform Bill. He said:¹⁹

A more flexible regime is applied to murder, requiring the Court to take into account mitigating and aggravating factors. The bill retains a strong presumption in favour of life imprisonment for murder. However, in a small

number of cases, such as those involving mercy killing, or where there is evidence of prolonged and severe abuse, a mandatory life sentence is not appropriate.

[72] The report of the Justice and Electoral Committee on the Bill confirmed the position taken by the Minister. In its report, it said:²⁰

A very small number [of those convicted of murder] will receive a sentence less than life imprisonment. These may include „mercy killings‟, failed suicide pacts and situations in which the accused is termed a „battered defendant‟. There is a very strong presumption in favour of life imprisonment for murder in the Bill.

[73] In the present case there are three factors that could provide support for the proposition that it would be manifestly unjust to impose a life sentence. These are:

(a) Ms Wihongi‟s brain injury and consequent cognitive deficits; (b) the fact that she can be classified as a “battered defendant”; and

(c) the other incidents (considered together) that have contributed to her post traumatic stress disorder such as the rapes and home invasion.

[74] We now turn to consider these factors. As the second and third factors overlap, we consider them together.

Cognitive deficits

[75] We turn first to Ms Wihongi‟s cognitive deficits, consequent upon her brain injury. Mrs Guy Kidd submitted that low intellectual capacity unrelated to the mental elements of criminal responsibility do not justify a departure from the statutory presumption of life imprisonment. She relied on this Court‟s decisions in R v O’Brien and R v Mayes to support that submission.

[76] As noted earlier²¹ this Court said in R v O’Brien that low intellectual capacity, unrelated to the mental elements of criminal responsibility, was seldom

likely to justify departure from the statutory presumption of life imprisonment. However, the Court did acknowledge that there may be cases where the mental or intellectual impairment of the offender may be so mitigating of moral culpability that, absent issues of future risk to public safety, it would be manifestly unjust to impose a sentence of life imprisonment.²²

[77] The impact of cognitive disabilities was also considered by this Court in R v Mayes. In that case the offender had a serious brain injury and was under the influence of alcohol at the time that he killed a woman with whom he had been in a relationship. The sentencing Judge had imposed a determinate sentence of 12 years imprisonment, recognising that Mr Mayes had suffered severe head injuries in a car accident that had led to the development of paranoic tendencies, and had made him volatile, impulsive and aggressive. The Judge had acknowledged that Mr Mayes was fully cognisant of what he did, but noted that his ability to control himself was distinctively reduced. He noted that this meant that Mr Mayes was a risk in high stress situations, but expressed the view that it was difficult to see anything like the situation that had led to the offending arising again.

[78] On appeal this Court adopted the approach outlined in R v O’Brien (referred to above). The Court said:²³

In the present case the murder was brutal and Mr Mayes‟ response to it was callous. Although there is room for a humane appreciation of the tragic consequences for Mr Mayes of his grave head injury, it must be borne in mind that he was also influenced in his conduct on the night in question by alcohol which he had taken in breach of a bail condition. Legislative policy in relation to the effect of the voluntary consumption or use of alcohol is indicated by s 9(3) of the Sentencing Act. Nor do we share the Judge‟s inclination to read down the degree of risk of a future violent reaction to stressors or perceived provocation. The degree of static risk will not change and the dynamic risk is not likely to be manageable to such an extent that amenability to life-time recall should be displaced.

[79] Mrs Guy Kidd pointed out that there have been only two cases where a sentence other than life imprisonment has been imposed under s 102. The first of

_{these was R v Law,}²⁴ _{which concerned a 77 year old man who killed his wife of}

²² _{At [36].}

²³ R v O‟Brien at [33].

50 years. She was suffering from severe dementia and the murder was classified as a mercy killing. He was sentenced to 18 months imprisonment with leave granted to apply for home detention.

[80] The second case happened after the sentencing in the present case. In R v Reid,²⁵ Mr Reid killed his 84 year old neighbour. An insanity defence was rejected. However Mr Reid had been suffering from major depression accompanied by psychotic delusions and the sentencing Judge, Brewer J, said he had no doubt that Mr Reid would not have killed his victim but for his illness, which had been unrecognised and untreated at the time of the killing. The murder came to light only because Mr Reid told members of his family about it. He had attempted suicide after the murder. Since the murder Mr Reid had received treatment for some three years,

and the Judge found that this had led to a marked improvement in his condition such that he no longer posed a risk to himself or others. A sentence of 10 years imprisonment was imposed. The Crown has not appealed.

[81] We accept Mrs Guy Kidd‟s submission that Ms Wihongi‟s brain injury would not, of itself, justify a departure from the statutory presumption of life imprisonment. We do, however, see it as a relevant factor, to be considered alongside the others identified above.²⁶

[82] We have departed from the analysis of the sentencing Judge in that he saw Ms Wihongi‟s alcohol consumption as a mitigating factor. However, Ms Wihongi‟s alcohol consumption is closely allied to her mental impairments, and we agree with the Judge that Ms Wihongi‟s mental impairment had a substantial impact on the offending.

Battered defendant: history of abuse

[83] Another important factor in relation to Ms Wihongi is her history of abuse at

the hands of the victim, which means that she can fairly be described as a “battered

_{defendant”. It is clear from the Hansard and Select Committee Report references set}

²⁵ _{R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011.}

²⁶ At [73].

out above²⁷ that cases of battered defendants were seen as possible candidates for the imposition of sentences other than life imprisonment under the discretion granted by s 102.

[84] This is confirmed by the statements made in the House by the Minister of

Justice in connection with the Crimes (Provocation Repeal) Amendment Bill in

2009. That Bill gave effect to a recommendation of the Law Commission that the defence of provocation set out in s 169 of the Crimes Act 1961 should be repealed. The Minister, the Hon Simon Power MP, said at the time of the second reading of that Bill:²⁸

The Sentencing Act 2002 abolished the mandatory life sentence for murder in favour of a presumption of life imprisonment, which may be departed from where such a sentence would be manifestly unjust. At the time, Parliament gave examples of circumstances where a lesser sentence may be justified, including mercy killings, failed suicide pacts, and situations in which the accused may be described as a battered defendant. In addition, s 9 of the Sentencing Act provides guidance on the types of mitigating factors that a court can take into account in issuing a sentence, including a sentence of life imprisonment. The factors include the defendant‟s mental impairment or diminished capacity, as well as any history of abuse or whether the defendant is a battered individual.

[85] The Law Commission Report which led to the introduction of the Crimes (Provocation Repeal) Amendment Bill, recognised that provocative factors may reduce the culpability of the offender in homicide cases, but questioned the special position of that mitigating factor (constituting a partial defence) when a number of similar mitigating factors were not recognised in the same way. The Commission considered that s 102 was adequate to address provocation-related matters. It considered whether it was necessary to set out examples of factors that could lead to the imposition of a sentence other than life imprisonment under s 102.

[86] The factors that were considered were provocation, mercy killing, excessive self-defence and diminished responsibility through mental impairment.²⁹ Ultimately the Commission decided that such examples would inevitably be written in broader

_{language and would carry the real risk of an overly inclusive interpretation.}

²⁷ _{At [71]–[72].}

²⁸ _{(17 November 2009) 659 NZPD 7755.}

²⁹ Law Commission The Partial Defence of Provocation (NZLC R98, 2007) at [203].

[87] We think it is clear from all these materials that recognition of Ms Wihongi‟s abusive relationship with the victim, which is such that she can properly be characterised as a battered defendant for the purposes of the s 102 analysis accords with Parliament‟s intention.

[88] In Ms Wihongi‟s case, her “victimhood” involving abuse suffered from others which, in combination with the abuse suffered at the hands of the victim, led to her suffering post traumatic stress disorder is an additional factor. We consider that this history of abuse contributed to the extreme reaction Ms Wihongi had to the situation confronting her immediately before the events leading to the victim‟s death. The history of abuse, at the hands of the victim and others, when added to the intellectual deficits to which we have already referred support the displacement of the presumption of life imprisonment.

Future risk of violent offending

[89] If, as Wild J did, we considered that there was no future risk of violent reoffending, we would see the displacement of life imprisonment as relatively straightforward. But we have concluded, based on the evidence now before us, that it cannot be said that there is no future risk of reoffending. So we have given careful consideration to the Crown submission that the existence of a possible risk of future violent behaviour makes it necessary that the lifetime power to recall an offender to prison that is inherent in a life sentence needs to apply to Ms Wihongi in order to ensure adequate protection for the community.

[90] We accept Mrs Guy Kidd‟s submission that this is a factor weighing against the displacement of the presumption, as it was in R v Mayes. This Court‟s decision in R v O’Brien makes it clear that a future risk to public safety may mean a life sentence is necessary, even when the intellectual impairment of the offender would otherwise indicate that such a sentence may be manifestly unjust. But ultimately we do not see future risk as a controlling factor in the present case because the expert assessors indicate that the risk factors applying to Ms Wihongi are limited to factors in particular situations only. There are indications that some progress has been and can continue to be made to manage these risks by equipping Ms Wihongi with

coping strategies to deal with the risks when they arise. More importantly, these situational risks can be managed if Ms Wihongi discontinues any association with the gangs (and given their treatment of her, there is every incentive for her to do so) and refrains from alcohol and drug use.

[91] The nature of the risk factors and the need for strategies to manage them emerged in the evidence before us of Dr Brinded and Dr Short. Both told us that the key factors in relation to Ms Wihongi were her past history of violence, her drug and alcohol use, her mixing with anti-social peers and her brain damage. They agreed that risk management was important. They agreed that Ms Wihongi would need to avoid alcohol and drugs and not associate with gangs after her release. She would need to develop skills to deal with stressors that may arise in the context of future intimate relationships. Ms Short‟s evidence was that there were signs of progress in this regard.

[92] Overall, the future risk is limited to specific situations involving factors which can be avoided in situations for which coping strategies can be developed. As with most prisoners, the risk of reoffending cannot be eliminated or assessed as minimal or low. But we do not see the existence of future risk of the nature involved in this case as being of sufficient seriousness to justify imposing a life sentence, given that there are otherwise good grounds for displacement of the presumption requiring such a sentence.

[93] Mrs Guy Kidd said that, while the Judge had considered the necessity to deter Ms Wihongi from future offending and to denounce her offending, he had not given proper weight to the sentencing principle of deterrence of others. She said that a sentence of less than life imprisonment did not adequately reflect that feature. We do not see the sentencing principle of deterrence of others as having a major impact on decisions under s 102. By definition, cases involving the consideration of the appropriateness of life imprisonment are exceptional cases where there are significant factors (usually personal to the offender) mitigating the culpability of the offender, calling into play other sentencing principles, particularly rehabilitation. The reason this Court has said that s 102 cases will be exceptional is that in most cases a life sentence is required to reflect the seriousness of the crime of murder and

to achieve the sentencing purpose of deterrence of others. This is self-evident and we do not see the Judge‟s omission of a statement to that effect in his sentencing notes as an error.

[94] Overall, we see this as a case of a battered defendant who has reacted in an extreme way to her abuser in circumstances where both the history of abuse and the offender‟s cognitive deficits have played a significant role in that extreme reaction arising. We see this as a case falling within the class of cases that Parliament contemplated would justify the displacement of the presumption. While we have some concerns about the risks which may arise in the future, we do not see those as sufficiently strong to deflect us from displacing the presumption in the circumstances of the case. We conclude, therefore, that the Judge was right when he concluded that the presumption of a life sentence was displaced in this case.

Should there have been a longer finite term?

[95] That conclusion leads us to the Crown‟s fall back submission, namely that the

finite term in this case was too short.

[96] Mrs Guy Kidd submitted that if a finite term was appropriate, then it should have been at least 15 years, which would have then required that Ms Wihongi served a minimum period of five years and be subject to recall for a further 10 years. She said that a sentence of eight years was too low because it allowed for the possibility that Ms Wihongi could be released after two years and eight months, which did not provide an adequate sanction for the taking of another life.

[97] The concern expressed by Mrs Guy Kidd assumes that Ms Wihongi will be able to demonstrate to the parole board after two years and eight months imprisonment that she does not constitute an undue risk to the safety of the public so that she will become entitled to parole. Given the nature of the reports we have before us and the realistic assessments of risk factors, there does not seem to be any great likelihood of that occurring. However, we accept that a longer period of imprisonment would not only provide a longer minimum period which must be served before parole could be sought, but also provide the possibility of a longer

period during which Ms Wihongi would be subject to recall if problems were to occur after her release.

[98] In our view, in the particular circumstances of this case, the sentencing principle of community protection is better met by a longer finite sentence, providing a longer period of imprisonment (during which treatment can be provided to Ms Wihongi with a view to reducing future risk). It would also provide a longer period during which some supervision with the possibility of recall is available. A longer finite term also assuages the concern that a sentence of eight years imprisonment does not adequately meet the sentencing purposes of denunciation of a crime involving the taking of a life and deterrence. We consider that the appropriate sentencing response in this case was a finite sentence of 12 years imprisonment. We therefore allow the appeal, quash the sentence imposed in the High Court and substitute a sentence of 12 years imprisonment.

Minimum period of imprisonment?

[99] There was some debate in the submissions before us as to whether it was possible for the Court to impose a minimum period of imprisonment greater than the default position of one third of the finite term if it has concluded that it would be manifestly unjust to impose a life sentence. There is authority to the effect that a minimum period of imprisonment cannot be imposed in circumstances where the presumption is displaced under s 102³⁰ but those cases were decided at a time when the test for the imposition of a minimum term of imprisonment was that the offence was “sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable”.³¹

[100] The current test is that the Court must be satisfied that the default period of one third would be insufficient for any or all of the purposes of holding the offender accountable, denouncing the offender‟s conduct, deterring the offender and protecting the community. Given the new test, we do not see any inherent

_{inconsistency between displacing the presumption under s 102 and imposing a}

³⁰ _{R v Mayes; R v Mikaele HC Auckland TO13638, 30 August 2002.}

³¹ Sentencing Act 2002, s 86, prior to its amendment in 2002.

minimum period of imprisonment greater than the default period of one third in circumstances where this was seen to be necessary to meet the objective of community protection. In our view, there is no statutory impediment to the Court imposing a minimum term of imprisonment if it considers it appropriate in a case where the s 102 presumption has been displaced.

[101] There is nothing in s 86 of the Sentencing Act that suggests that the power to impose a minimum period of imprisonment greater than the default period does not apply in relation to a finite sentence imposed after the displacement of the s 102 presumption. We see no reason to read such a limitation into the section.

[102] We conclude, therefore, that a minimum period of imprisonment greater than the minimum otherwise applicable (one third) could be imposed in a case such as the present. But we are satisfied that there is no proper basis for doing so in this case.

Result

[103] The appeal is allowed, the sentence imposed in the High Court is quashed and a sentence of 12 years imprisonment is substituted.

Solicitors:

Crown Law Office, Wellington for Appellant.