Sentencing by Courtney J in:

 R v Mott [2012] NZHC 2366, High Court Auckland, 13^th September 2012

Counsel: 

• R Mansfield for Defendant
• A R Longdill for Crown

 Sentencing of Mr Mott for assisting his wife to commit suicide, a charge to which he pleaded guilty.

Background

 Mott’s wife Rosie had been afflicted for about four years by a dreadful disease, Primary Progressive Multiple Sclerosis. She was in great pain, and losing the ability to walk and take care of herself.  She hated the indignity of her condition and decided in 2010 to end her life.

Mott provided some slight assistance in that decision. It is important to note that strictly speaking this case will be of limited precedent value because of its special facts, particularly the effect that a conviction could have on his ability to work in the USA at his trade of boatbuilding.

Planning the suicide

Rosie's niece gave evidence of conversations with her about euthanasia in July 2010, in which she made it clear that she was determined to end her life.

Rosie contacted an organisation that advocated for the right to die, talked to Mott and her daughter about it, and made a farewell video explaining her decision.

Rosie acquired most of the equipment she needed herself: about three months before her death she bought a cylinder and had it filled with nitrogen. Mott obtained a flow meter and taped it to the regulator on the cylinder, and discussed with her how the equipment would work. The cylinder was then put in wardrobe where she could easily access it.

 On 28 December 2011, to protect Mott she asked him to leave the house.  He understood what she intended to do and when he returned Rosie was dead, having taken the steps that she had planned.

Held

There are relatively few cases such as this, so sentencing consistency was especially important.  

Decision was Rosie’s

 The Court was satisfied that the decision to end her life was Rosie's own, that she researched the means by which decision would be implemented, and that she settled on the use of nitrogen gas.

Closest comparable case

The closest New Zealand case was R v Davison HC Dunedin CRI-2010-012-4876, 24 November 2011, in which the defendant’s sentence for helping his mother to die was five months' home detention - but there were differences.

Case differences

Mott's assistance was not as direct. The defendant in Davison was directly involved in providing fatal morphine pills to his mother, and it was unlikely that she could have effected the overdose herself. Also it was entirely Rosie's decision as to when she killed herself, and she would have found a way to end her life even without Mott’s help.

Sentencing considerations

Thus Mott's case warranted a slightly lower starting point than 18 months' imprisonment.  The Crown accepted that no custodial sentence should be imposed, and Mott's counsel submitted that no conviction should be entered at all. 

The Court must start from point that the offence was serious under the law as it presently stood, but the assistance Mott gave was limited, restricted to setting up equipment that Rosie would use later at a time of her choosing. 

If he had declined to assist she would nevertheless have succeeded in ending her life. She was plainly an intelligent and capable woman who had managed alone for long stretches when Mott worked overseas, including several months in late 2010 and early 2011, well after she had been diagnosed and was suffering from debilitating symptoms.

Mott took no part in the events of Rosie's final day, and his absence from the house, while recognised by both him and Rosie as necessary for his legal protection, caused him the grief of knowing that she had died without him being there. 

It was evident from these facts that, as the Crown accepted, the level of blameworthiness was low.  The real question was whether the consequences of a conviction would be out of all proportion to the offending. Under s 107 Sentencing Act 2002 that is a legal test, not a question for judicial discretion. 

Mott had concerns about having to disclose a conviction to prospective employers, and the effect of a conviction on his ability to continue to work at his trade of boatbuilding in the USA.  A conviction of this nature would have to be disclosed if he wanted to work there, and there was real uncertainty about the effect that would have. It was a grey area, but it was nevertheless reasonably clear that it would cause some difficulty in immigration for work purposes.  

In his particular case the consequences of a conviction would be out of all proportion to the gravity of his offending. The Court then needed to consider whether it should exercise its discretion to grant him a discharge without conviction.  

Mitigating factors

Such an order was not precluded, because though the offence was serious there were strong mitigating factors: 

(a) at 61 years old Mott had no convictions of any kind,

(b) he acted out of love,

(c) his motivation was to support wife in a decision she had made,

(d) he was open and fully co-operative with police,

(e) he entered an early guilty plea,

(f) there was no appreciable risk of him re-offending

Discharge without conviction

An order was made discharging him without conviction, the Court emphasising that its decision represented the very particular circumstances of the case, which were at the lower end of the spectrum from any other New Zealand case decided in this area.