R v Caswell HC Wellington CRI-2009-085-7797
[2011] NZHC 113
•4 February 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2009-085-7797
THE QUEEN
v
PHILIP JOHN CASWELL
Hearing: 6 December 2010
Counsel: D R La Hood and MWC Snape for Crown
S L Baigent and G M Fairbrother for Accused
Judgment: 4 February 2011
SENTENCING NOTES OF MACKENZIE J
[1] Philip John Caswell you appear for sentence on a charge of manslaughter. You pleaded guilty to that charge shortly after the beginning of your trial.
[2] The facts are that on 23 October 2009 you and the deceased, Mr Louis, were, with a number of others, at an apartment in Arlington Apartments in Hankey Street in Wellington. The tenant of the apartment was accustomed to allowing his apartment to be used for the process of “cooking” morphine sulphate into liquid diamorphine or heroin. On that morning, a 100 milligram morphine sulphate tablet was being converted into heroin in this way. The deceased was to share in the heroin produced and intended to inject the substance into himself using a hypodermic syringe. You were near the deceased when he was about to inject himself. You say that you noticed an air bubble in the syringe and took the syringe from him to remove it. In your interview with the probation officer you said that you then
handed the syringe back to the deceased, who injected himself. That version of
R V CASWELL HC WN CRI-2009-085-7797 4 February 2011
events is not consistent with your plea of guilty to the charge of manslaughter. It is inherent in that plea that you injected the substance into the deceased. Your counsel indicates that at the time of the interview you went into panic as to your circumstances. She says that you confirm your guilty plea and your part in the death of the victim and that you injected the victim with morphine. That is the basis on which I must sentence you.
[3] Shortly after the injection, the deceased lost consciousness. An ambulance was called and he was admitted to the intensive care unit of Wellington hospital but never regained consciousness. He died on 23 October 2009 after life support was withdrawn. The medical evidence indicates that the deceased had been taking medications of the class called benzodiazepines. He had been prescribed a reducing course of diazepam or valium which was in place at the time of his death. The medical evidence acknowledges that he may have taken larger than prescribed amounts. The deceased had also been taking amitriptyline an antidepressant of the tricyclic class. A combination of those drugs, the consumption of which was not known to you, may well have contributed to the death the cause of which was cerebral anoxia with an antecedent cause of cardiac arrest. In sentencing you, I proceed on the basis that the administration of the morphine would not by itself have caused death, but that the use of the other drugs is likely to have played a part in making the morphine injection more dangerous through various drug interactions. The injection of the morphine was a material cause of death.
[4] Counsel for the Crown submits, and your counsel accepts, that the paramount purposes of sentencing in this case are denunciation, specific and general deterrence, and the need to hold you accountable for the harm done by the offending. Your counsel however submits that the importance of denunciation and deterrence should not be over emphasised in this case. The Crown also acknowledges that the Court may consider assistance in your rehabilitation as an appropriate purpose and notes the need to impose the least restrictive outcome that is appropriate in the circumstances. Having regard at this stage only to the circumstances of the offending, and without taking into account your personal circumstances, it is clear that the appropriate sentence, in the hierarchy of sentences, is imprisonment. Manslaughter is a serious offence. The loss of life would ordinarily require that form
of penalty. But as the circumstances of manslaughter may vary widely, the appropriate term of imprisonment may also vary widely. In the sentencing indication which I gave before your guilty plea was entered, I indicated that I considered the appropriate starting point, having regard to the circumstances of the offending, is in the range of three to three and a half years. The most comparable cases to which I
was referred in making that assessment, were R v Slater,[1] R v Cox,[2] and R v
Campbell.[3] I have given closer consideration to the circumstances to fix the appropriate starting point, within that range.
[1] R v Slater [1998] 3 NZLR 1.
[2] R v Cox High Court Wellington CRI-2008-035-549, 5 March 2009.
[3] R v Campbell High Court Christchurch CRI-2008-009-012759, 2 July 2009.
[5] There are some mitigating features of the offending. I accept that you did not appreciate, and could not have known of, the extent of the increased risk arising from the other drugs. I also accept that, had you not injected the victim, he would likely have done so himself, with the same consequences. In that respect, the circumstances are somewhat similar to those in Slater, where a sentence of three years was imposed on appeal. In Campbell, two injections were given within a short space of time, which must have created an increased risk of overdose. In that case a starting point of three and a half years was taken. I think that your case is somewhat less serious because you were not aware of the increased risk from the consumption of the other drugs. Your case is similar to that of Cox, where a starting point of four years was taken. That case however had the additional serious aggravating feature that the offender did not advise emergency services of the injection. Also, the victim there was a naïve drug user. Having regard to the circumstances of the offending in your case, I consider it appropriate to fix a starting point at the bottom of the range which I had indicated. I adopt a starting point of three years.
[6] In turning to your personal circumstances, I consider that the crucial issue is whether your prospects of rehabilitation and the possibility of rehabilitative measures being available are such as to render a sentence of home detention more appropriate than a sentence of imprisonment. That is as I have said the crucial issue: whether those prospects justify departure from what would otherwise be the
appropriate sentence of imprisonment. I think it appropriate to consider that
question on the assumption that the pre-condition, namely that a sentence of two years or less would otherwise be imposed, might be capable of being met, although as I said in my sentencing indication that would be a considerable stretch.
[7] You are aged 45 years. You are married but live alone. You had earlier formed a relationship with your first partner, also a drug user, with whom you had a daughter but you later separated. You later formed another relationship and married but this too resulted in separation. You became a heavy user of methamphetamine and went into a rehab programme but completed only five weeks of the three months programme. You say that you decided to get your life back together and in 2009 acquired the apartment you now live in and attempted to repair the relationship between yourself and your former partner and your daughter. Your former partner apparently has a terminal illness and you have been unable to make contact with your daughter.
[8] You work on a voluntary basis and your only source of income is the sickness benefit. You have ten previous convictions, all of a relatively minor nature. Three of those are drug related but they involve relatively minor cannabis offending. They are not an aggravating feature which would weigh against home detention, but they preclude your being treated as a first offender.
[9] Home detention might allow you to attend appropriate rehabilitation in the community to address your drug addiction. There is however no clear established or proposed plan at this stage for any rehabilitative endeavours. There is little material which would enable me to make any meaningful assessment of the likelihood of such a programme being available or being successfully completed. There is no evidence of a substantial degree of community support that would be available to you in a rehabilitative process. You would be living alone. The proposed home detention address is a two bedroom apartment on the top floor of a three store multi unit complex. You do not have current employment. All of those factors would tend to make a sentence of home detention difficult. I have given very careful and anxious consideration to the question of whether the prospects of rehabilitation can justify that form of sentence. With some regret I have formed the view that the prospects of rehabilitation are not sufficient to lead to the conclusion that home
detention is a more appropriate sentence than imprisonment. I consider that I must impose a term of imprisonment.
[10] In reaching that view I have taken into account the victim impact statement read this morning by the mother of your victim. She has, in a very responsible and indeed sympathetic way described the effect of her son’s loss on her. She acknowledged his responsibility in events and has expressed the wish that you not be sent to prison. I have reviewed the conclusion that I had tentatively arrived at before hearing submissions in the light of that. I have responsibilities to reflect the need for deterrence, and responsibilities to the community, in this process and those views have not caused me to alter the view that I had formed.
[11] Also, I should say that in reaching the conclusion that a term of home detention is not appropriate I do not wish to be pessimistic about the prospects of rehabilitation. There will be rehabilitative prospects available to you in the course of a prison sentence and I urge that opportunities which might be available should be made available to you and that you should take advantage of those. The shock of this matter and the effect which it is has had may well, I hope, prove a catalyst for you to endeavour to turn your life around.
[12] But having reached the conclusion that a term of imprisonment is inevitable I must address your personal circumstances in making an adjustment to the starting point of three years which I have identified. There are no personal aggravating circumstances which would require an uplift. Your guilty plea entitles you to a discount. That came at a late stage. As I indicated in my sentencing indication, there are a range of factors to be taken into account in this regard. There was an early admission to police and as your counsel submits that admission was effectively the only evidence against you on the crucial issue of the administering of the injection. Also, the circumstances of the case are unusual and it was appropriate for the defence to investigate that closely. The expert evidence obtained by your counsel in that process had only very recently become available. Discounts for guilty pleas should not be an incentive to pleas which are not appropriate and should not be a disincentive to an appropriate and proper investigation of the circumstances. Having
taken those factors into account, I consider that an appropriate discount for the guilty plea is six months.
[13] Your counsel submits that a discrete discount for remorse is also appropriate. There may be cases in which an additional discount for remorse may be appropriate, additional to that inherent in the entry of a guilty plea. Having taken all matters into account I consider that this is a case where I may properly make some additional reduction to reflect that element and also to provide some degree of incentive to you in the efforts which you will need to make to turn life around. On that account I consider that it is appropriate to make a further allowance of two months to reflect that element. That would lead to a total reduction of the three year starting point of eight months.
[14] Accordingly, the sentence is that you will be sentenced to imprisonment for a term of two years and four months.
“A D MacKenzie J”
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