R v Davidson

[2012] NZHC 3448

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-059-2436 [2012] NZHC 3448

THE QUEEN

v

BLAIR JOHN DAVIDSON

Hearing:         17 December 2012

Appearances: M J Thomas for the Crown

R Smith for the prisoner

Sentence:       17 December 2012

SENTENCING NOTES OF CLIFFORD J

[1]      Mr Blair Davidson, you appear for sentencing today having pleaded guilty to the manslaughter of your friend, Mark Vanderley, on 29 April this year on Glenlappa Station.

[2]      You  shot  and  killed Mr Vanderley whilst  you  were out  hunting together. Manslaughter is the unlawful killing of one person by another where there is no murderous intent involved.   So this is an accident.   It is a tragic accident.   It was contributed to by carelessness and by inappropriate shooting practices. As I will say, the presence of alcohol and shooting up on to the hill where you knew at least one person was in close proximity were serious departures from good hunting practice. But at the end of the day for everyone in the Courtroom this is a tragic accident, and we need to remember that it was an accident, serious though the conduct was that

gave rise to it.

R v DAVIDSON HC INV CRI-2012-059-2436 [17 December 2012]

[3]      Your shooting was unlawful because you failed to perform your legal duty to use reasonable care with your firearm.  By your guilty plea, you acknowledge that your conduct was a major departure from the standard of care expected of a reasonable person to whom that duty applies.

[4]      The charge of manslaughter to which you have pleaded guilty is, therefore, inherently more serious than other charges you might have faced, such as careless use of a firearm causing death.   That is reflected in the maximum penalty for manslaughter, which is life imprisonment.  The offence of careless use of a firearm causing   death,   by   contrast,   attracts   a   maximum   sentence   of   three   years’ imprisonment.  The difference is obvious.

[5]      The sentence I am to impose on you today must reflect the seriousness of the offence you have admitted committing.  So whilst I have said it was an accident, at the same time it was a tragic accident and is a tragedy for the family of the deceased particularly, it is a tragedy for you personally and it is also a tragedy for the deceased’s partner and a tragedy for your family.  And everyone here in Court today is affected by that sadness.

Factual background

[6]      The tragic events which have brought all of you here today are as follows.

[7]      Mr Vanderley was an old friend of yours Mr Davidson.  You had known each other since you were five or six years old.  On 28 April this year you, Mr Vanderley and four other friends, were on a hunting party on Glenlappa Station in the high country of Northern Southland.  You were staying in a musterer’s hut near the Station’s northern boundary.  During the day you had hunted in various locations on Glenlappa, prior to returning to the hut in the afternoon.  There you all socialised for a period, drinking beer.   You shared an evening meal, and went on drinking after that.  Mr Smith records in his written submissions that you say you drank three crate size bottles of Speights between lunchtime and seven o'clock, a further bottle of Speights with your dinner – which you describe as large (that is the dinner) – and

then,  from  dinnertime  until  you  went  out  spotlighting,  five  to  six  “weak”  you

describe them, gin, lime and waters.

[8]      It was around about midnight when your group left the hut to go spotlighting in the four wheel drive, three in the cab and three on the back. A number of hare and rabbits were shot.  At approximately 3.00am deer were spotted in a turnip paddock adjacent to the main track.  The weather at the time was clear and the paddock was open.  The four wheel drive was stopped and you and another member of your party shot at two deer, killing one and – it would appear – wounding the other.   You, Mr Vanderley and another companion recovered the first deer.   You gutted it and took it back down to the truck.

[9]      Mr Vanderley and at least one other member of your party then continued up to the top area of the paddock and began a search for the other, wounded, deer.  One of that group was wearing a high visibility jacket.  At some point a number of your companions who had been out on the hill returned to the four wheel drive where you were standing.  You apparently thought Mr Vanderley was one of those.  In fact he was not.  He remained with your companion who was in the high visibility jacket.

[10]     Members of the group down at the truck thought they saw another deer in the vicinity.  You fired a shot at this animal, which appears to have missed.  The search up on the hill continued.  You saw the deer again, told your companion in the high visibility jacket to stay still as you had seen a deer running near him.  You then took another shot.   This time, tragically, the shot hit Mark Vanderley in his left check, killing him instantly.

[11]     You and another member of the party drove into cell phone coverage and called the authorities.   The police arrived an hour later.   You were taken to Gore police station where you underwent a breath alcohol test.  You registered 270 micrograms of alcohol per litre of breath in that test.  That was five hours after the shooting.  An ESR calculation based on that reading estimates that your breath alcohol at the time of the shooting would have been between 500 to 700 micrograms of alcohol per litre of breath.  That level of alcohol is higher than the maximum limit

under which a person can drive, which is 400 micrograms of alcohol per litre of breath.

[12]     When spoken to by the police you stated you were a hundred per cent certain it was a deer you were shooting at, that you believed that Mr Vanderley was down near the truck.  You told the police that the fault all lay on your shoulders and that was what you took on when you had a firearms licence and a gun.  You accepted it was a major rule that you identify your target, but again you said you were a hundred per cent sure you had done so.

Approach to sentencing

[13]     In fixing your sentence today, I am required first to determine the sentence, described – and you will have heard me refer to it – as the starting point sentence. The starting point sentence reflects the seriousness of what a person has done.  I then have to adjust that starting point sentence by reference to factors personal to you that would either increase the seriousness of the sentence that should be imposed or decrease it.  Finally, I am to consider the significance of your guilty plea.

[14]     Now in all this I am to be guided by the purposes and principles set out in the

Sentencing Act 2002.  Of particular relevance here, these include:

(a)       the need to hold you accountable for the harm done to your victims –

including Mr Vanderley’s partner and his family;

(b)to promote in you a sense of responsibility for, and acknowledgement of, that harm;

(c)       to denounce your conduct;

(d)      to deter others from committing the same or similar offending; and

(e)       to provide for the interests of the victims of your offending.

[15]     The combination of the consumption of alcohol and the use of lethal weapons present here is a particularly disturbing aspect of this offending.   That, in my assessment, makes it especially important that the sentence I impose on you should appropriately denounce your conduct and deter others from behaving similarly.   I am, however, to impose the least restrictive sentence that is appropriate in the circumstances.

[16]     To arrive at my sentencing decision I will first discuss relevant aspects of your life and background.   I will then reflect on the victim impact statements we heard this morning before, finally, considering the legal submissions that have been made.

Personal circumstances and pre-sentence report

[17]     Mr Davidson,  you  are  25  years  old,  you  are  single  and,  except  for  one relatively minor matter that is of no relevance here today, you have never previously appeared before the Courts.

[18]    References have been provided to the Court by your current and previous employers, Barry and Robyn Burgess and Greg and Sue Stott.  Both couples describe you as a reliable, honest, hardworking person and an invaluable staff member.  You are seen as having a solid future in the agriculture industry.   You have a strong interest in outdoor activities, including fishing, boating, working with your dogs and spending time with your friends and family.

[19]    The Burgesses also state that you have shown great remorse for what has happened.

[20]     Family  friends,  the  Haywards  and  the Afflecks  have  also  provided  very positive letters of support for you.

[21]     I acknowledge at once that the Vanderleys no doubt – and I’m not taking away anything that has been said about you – would say that all the same things would be said about Mark as well, and I understand that.

[22]     Your pre-sentence report writer states that you have the support of both your family  and  friends  and  that  you  presented  as  shocked  and  remorseful  for  your actions.  The tragedy that occurred that night has obviously had a substantial effect on you.   The writer reiterated what has been told to me, and I accept it, that you accept responsibility and that you are remorseful as much as you can be. You acknowledge that you had been drinking but you did say you were not intoxicated.

[23]   The report records that you were willing to attend a restorative justice conference and were deemed suitable to do so.  For quite understandable reasons the Vanderleys have not felt able to do that yet.

[24]    You and your family have on your behalf offered to pay emotional harm reparation of $10,000 to the victims.  I understand they have now accepted that and it will be paid half to Mr Vanderley’s own family and half to his partner.   Such a payment cannot of course relieve you of your responsibility for your actions nor cure the hurt you have caused, but it is a tangible confirmation of your remorse and Ms O’Brien and the Vanderleys I think accept it as such.

Victim impact statements

[25]     We have all heard the victim impact statements – Mr Vanderley’s long-term partner, Sally O’Brien, his parents Glynnis and Richard, and his sisters Sarah and Amanda – read out in Court today.  I do not need to repeat the detail of those.  Each reflect the grief and sadness that Mark Vanderley’s tragic death has caused and will continue to cause in the future.  Sally feels her whole future has been taken away from her. As you heard, she would give everything to have Mark back.  Glynnis and Richard, Mr Vanderley’s parents, speak of their plans and dreams for the future having been shattered.   Mr Vanderley’s sisters, Sarah and Amanda, said that there would forever be a missing part in their lives, a sadness that would never fade. Those feelings and emotions, that sadness, are just part of the tragic consequences of the actions of yours that have brought us here today.

[26]     I acknowledge, as I have said, that you are fully aware of the consequences of your actions, that you accept responsibility for them and that you are genuinely

remorseful.  Part of this tragedy for you is that you are responsible for the death of a lifelong and very good friend.

Sentencing discussion

[27]    Sentences imposed for manslaughter must be assessed by reference to the particular facts and circumstances involved.  These can, in terms of their seriousness, vary greatly, sometimes from little more than negligence to cases close to murder. The Court of Appeal has declined to provide detailed guidelines to Judges, saying:1

We are satisfied that the best guidance for sentences in these manslaughter cases is to be found in earlier sentencing decisions in similar cases...

[28]     As was pointed out in submissions, however, there would appear to have been only one other case where a hunting accident causing death has led to a manslaughter charge.  That is a case known as R v Mears.2    That case attracted considerable publicity.   There the defendant, contrary to the terms of his shooting permit, fired a gun at night in a popular camping area in the bush at what he thought were the eyes of a deer.  The lights he saw in fact were headlights worn by two campers, one of whom, a young woman, was hit and killed instantly.  In sentencing there the defendant to a term of imprisonment of two and a half years, the Judge

identified a starting point of four and a half years and reduced that by some 44 per cent to take account of the offender’s guilty plea, genuine remorse and other mitigating factors.

[29]     The  Crown  submits,  as  I  have  said,  pointing  to  that  decision  and  the aggravating features here, that a starting point of five years should be adopted.  The aggravating features the Crown points to are your failure to identify your target beyond reasonable doubt, your failure to check the firing zone, your failure to avoid alcohol when handling a firearm and the impact of your offending on Mr Vanderley’s partner and his family.

[30]     Mr Smith has recognised the seriousness of your breach of duty but suggests to me it may not be quite as serious as that in R v Mears.  He noted in particular that

1      R v Leuta [2002] 1 NZLR 215 (CA) at [59].

2      R v Mears HC Rotorua CRI-2010-069-2211, 2 February 2011.

you had a permit, you were not in breach of it, you did check the firing zone as you had seen your companion in the high visibility vest, and you believed Mr Vanderley had come down off the hill.

[31]     In assessing those submissions in making my decisions, I have considered the case of Mears, which is the one I have spoken to you about, another case called Goldstone, which was another tragic shooting accident but not a hunting case, and a number of the hunting cases that have been dealt with with the lesser charge of careless use of a firearm causing death.3

[32]     I acknowledge that, by contrast to the Mears case, you were not in any way in breach of your firearm’s licence on the evening in question.  You were, also in contrast to the offender in Mears, not in an area where anybody other than your own party were known to be present.   Moreover, the Crown accepts that you were not aware Mr Vanderley was still in the area into which you were firing.

[33]    Having said that, there are the two features of this offending that are of particular concern to me.  Most particularly, I think it is very seriously aggravating that you went out shooting after you had been drinking.   Whatever your own assessment of the significance of that may have been, the simple fact is that a gun is more dangerous than a motor vehicle.  We have learnt so clearly in the drink/driving context, alcohol fundamentally impairs judgment and makes an already dangerous activity – such as driving a motor car – even more dangerous.   The same considerations apply, in my view, with even greater force to the risks inherent in the combination of drinking and hunting with lethal firearms.

[34]     The second aggravating factor that I am particularly concerned about is that you decided to shoot in the dark at what you thought was a deer knowing full well that one of your companions was in close proximity to your target.  I do not think the fact that he was wearing a high visibility jacket in these circumstances renders that

conduct much, if any, less concerning.

3      Davies v Police HC Hamilton AP35/03, 11 July 2003; R v Dummer DC Wellington CRI-2012-

035-000831, 24 August 2012;  NZ  Police  v  Burke  DC  Queenstown CRI-2012-059-000295,
14 May 2012; Police v Phibbs DC Nelson CRI-2007-042-1846, 17 July 2007.

[35]     Finally, there is the fact that – notwithstanding what you thought you were shooting at – you had failed to properly identify your target, thus breaching the most fundamental rule of all.

[36]     By my assessment, and having regard to those considerations, the appropriate

starting point here is a sentence of four and a half years’ imprisonment. [37] I accept there are no aggravating factors.

[38]     I turn now to mitigating factors.

[39]     I acknowledge your general good character.  The references provided by the Burgesses and the Stotts, and the family friends the Afflecks and the Haywards, confirm that.  They all talk of you as being a reliable and conscientious employee, pleasant and courteous in manner, and someone whom they have enjoyed having living  with  them.    The  Afflecks,  who  as  I  understand  had  met  you  because Mr Affleck worked on your parents’ farm, also spoke highly of you.  They say they would be very happy to leave their four year old son Blair in your care.   They describe you as conscientious and hard working.

[40]    I also take account of the remorse you have shown.  You immediately acknowledged that you were at fault for Mr Vanderley’s death.  I am satisfied, as I have emphasised, that your remorse is genuine and that you yourself have suffered and will continue to suffer considerably as a result of these events.   I also acknowledge your wish to take part in a restorative justice conference and your offer of reparation.  That offer of reparation of $10,000, which I understand your family are going to help you with, will be accepted and will go half to Mr Vanderley’s immediate family and half to his partner.

[41]     Overall, in terms of your good character and remorse, I think a discount of

20 per cent from your starting point sentence is appropriate.

[42]     Your guilty plea was given at the earliest possible opportunity.   You are entitled to a further discount of 25 per cent with respect to that guilty plea.

[43]     That results in an end sentence of 30 months, that is two years and six months.

[44]     On that basis home detention is not available.  I have to say that even if it were, I do not consider it would have been the appropriate sentence in this case.  I have reached that conclusion not so much because of any need to punish you or to deter you personally, because I think life in many ways has done that already in these tragic circumstances, but because of the need to denounce your conduct and to deter others from behaving in a similar way.

[45]     Mr Davidson, if you would please stand.

[46]     Mr Davidson, you are sentenced to a term of imprisonment for two years and six months.  You are ordered to pay reparation of $10,000 which – as agreed – is to be paid as to $5,000 to Ms O’Brien and $5,000 to Mr Vanderley’s parents.

[47]     To everyone in the Court, I acknowledge, as is always so in cases of this sort, that  the  sentence  I  impose  today  can  by  itself  do  little  to  heal  the  hurt  that Mark Vanderley’s death has caused.   Rather, it is simply the response of the law which tries here – as elsewhere – to do as best it can to deal with the complexities and frailties of human nature and with the consequence of tragic accidents such as this.

[48]     Mr Davidson, please stand down.

Court adjourns at 10.52am. Court reconvenes at 11.01am.

[49]     Mr Davidson, given your conviction for manslaughter this morning, you are now subject to what is colloquially known as the three strikes law.  I am now going to give you a warning of the consequences of another serious violence conviction. You will also have to be given a written notice outlining these consequences which

lists serious violent offences.  Manslaughter is one of those.  I acknowledge that in the circumstances and, in fact, the reason I am having to do this now, is that it never occurred to me that this type of manslaughter would be subject to this warning.  But it is, so I have to do it.

[50]    If you are convicted of any serious violent offences other than murder committed after this warning, and if a Judge imposes a sentence of imprisonment, then  you  will  serve  that  sentence  without  parole  or  early  release.    If  you  are convicted of murder committed after this warning then you must be sentenced to life imprisonment.  That will be served without parole unless it would be manifestly unjust.   In that event the Judge must sentence you to a minimum term of imprisonment.  You will be asked downstairs to sign a piece of paper acknowledging that you have been given that warning.

[51]     You can stand down now.

“Clifford J”

Solicitors:

The Crown Solicitor, P O Box 355, Invercargill for the Crown ([email protected]) Cruickshank Pryde, P O Box 857, Invercargill for the prisoner ([email protected])