R v Gardner
[2021] NZHC 3174
•24 November 2021
ORDER MADE SUPPRESSING PUBLICATION OF THE REDACTED PASSAGES AT [22], [24], [30] AND [33]. IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2021-076-385
[2021] NZHC 3174
THE QUEEN v
JAYDEN LEONARD JOHN GARDNER
Hearing: 24 November 2021 Appearances:
R McDonald for Crown
T J Jackson for Defendant
Judgment:
24 November 2021
SENTENCING REMARKS OF MANDER J
[1] Mr Gardner, at the conclusion of my sentencing remarks I will ask you to stand but you can remain seated while I deliver my sentencing remarks.
[2] Mr Gardner, you are for sentence this morning having pleaded guilty to the manslaughter of your father, Graham John Gardner, who I understand, and it has been confirmed this morning, was known as John (John). At the time of your plea and at your request, a conviction was not entered. It is necessary that I now formally record the entry of a conviction on that charge. A further preliminary matter is that there has to date been an order prohibiting publication of your name. That, understandably, has no longer been pursued and it now lapses.
R v GARDNER [2021] NZHC 3174 [24 November 2021]
[3] The entry of your guilty plea followed the provision of a sentence indication, at which time I set out the facts of your offending. While it may seem unnecessarily repetitive, it is necessary that I repeat the narrative of your offending in open Court as it is the basis upon which I proceed to impose the sentence on you.
The facts
[4] John was your 68-year-old father. At the time of this offence you were living with your parents at a rural property near Timaru. You had recently finished a sentence of home detention which you served at the address and were at the time subject to post-detention conditions that included judicial monitoring.
[5] At around 7 am on the 30th of April this year, you awoke in your bedroom. You were suffering from the effects of methamphetamine withdrawal. You went to your parents’ bedroom searching for your cannabis. You were agitated and frustrated. You began slamming doors in the house. Your 68-year-old father, John, confronted you and told you to settle down.
[6] An altercation took place between you and your father in your bedroom. The two of you began wrestling and your father ended up in a seated position on a couch with you standing over him. While in that position, you punched him three times in the head with a closed fist. One of the punches to the back of the head forced your father’s head into the arm of the couch, causing his nose to bleed. The punches were of sufficient force to cause him to lose consciousness for several minutes and resulted in three small cuts and bruises to his face.
[7] John was reluctant to seek medical assistance and appeared to recover from the assault. However, later during the evening and overnight his condition deteriorated and he lost consciousness. The following morning he was flown to Christchurch Hospital in a deeply unconscious state. A CT scan revealed that your father was suffering from a large inoperable subdural haemorrhage from which he died the following day.
[8] John was taking blood thinning medication for a heart condition. There is no evidence that at the time he was excessively anticoagulated, and his levels, which were
routinely monitored, had been within the appropriate range. However, bleeding in the brain is more likely to continue in a person who is on such medication.
Victim impact statements
[9] The devasting effect of John’s death on his family and loved ones is evident from the victim impact statements that I have read. His son and daughter-in-law have described how close they were to John and how often they turned to him for advice. Their children loved spending time with their grandfather, who would always attend their sports games and be present for family celebrations. They have described how your actions have divided their family and undermined their relationships. John’s daughter-in-law has remarked on how he was like a father to her and his loss remains greatly upsetting.
[10] John’s wife, your mother, has described the stress of her husband’s death as unimaginable. She refers to not having just lost her husband and friend, but has described the anguish she has felt from losing you, her youngest son, in the sense that she has been unable to contact you and directly support you because of the ongoing criminal proceeding, which with today’s sentencing effectively comes to an end.
[11] John’s elder brother has remarked on how his brother’s death has left a large hole in his life. He has remarked that it is especially difficult to be deprived of the opportunity to say their goodbyes to him, such was the sudden nature of his death.
[12] John’s stepson has described the massive strain that your offending has caused him, his children (who are of course John’s grandchildren) and the wider family. The children have lost their grandfather and remain scared by the events of his death.
[13] I am advised that John was hoping to retire at the end of the year and focus on his family, but these plans have been tragically cut short.
[14] I wish to acknowledge the family’s deep pain from the sudden and violent death of their much loved father, husband, grandfather and brother, which is no doubt even more tragic and difficult to accept as a result of having been caused by a fellow family member.
Approach to sentence
[15] Mr Gardner, in imposing sentence, I seek to hold you accountable for the great loss that you have caused and to denounce the conduct that led to your father’s death. However, I am required to treat you consistently with others who have committed similar offences and to impose the least restrictive outcome appropriate in the circumstances.1
[16] As I observed at the time of providing a sentence indication to you, the offence of manslaughter involves a death that has been caused as the result of the unintended consequence of another person’s unlawful act. A person’s level of culpability for that crime can vary greatly because of the wide range of circumstances in which death can occur across a range of unlawful acts which may involve varying degrees of intent. Each case must be judged on its own circumstances.
Starting point
[17] In the present case, I identified a number of features which must be recognised as aggravating. I articulated those when I delivered my sentence indication but it is necessary that I repeat them today:
(a)There is the attack to the head. You struck your father three times in the head with forceful blows.
(b)There is the age difference between father and son. John was aged 68 years. You, as a man of 28 years of age, had obvious physical advantages. You were in a standing position at the time you delivered the blows, while your father was seated on the couch and less able to defend himself.
(c)The violence that led to your father’s death took place within the family home where he was entitled to be safe and free from such violence.
1 See Sentencing Act 2002 , ss 7 and 8.
[18] You demonstrated immediate regret for assaulting your father. You sought to attend to him and to obtain help when you realised he was injured. It also appears that your level of agitation and poor mental state that morning was linked to withdrawal effects you were experiencing from your methamphetamine habit. Your use of drugs and other difficulties that you were experiencing during this period had placed considerable strain on your family and your relationship with them. However, to the extent that your actions that morning have a causative link with your drug use, that cannot, as a matter of law, be taken into account as mitigation.2
[19] In setting the indicated starting point of five years’ imprisonment, I noted at that time that I had considered a number of comparable manslaughter sentencing decisions.3 The fatal assault has some parallels with so-called “one punch” manslaughter cases, although I am cognisant that you punched your father in the head three times and that those blows were administered with force, with at least one being sufficient to cause your father to become unconscious, and ultimately resulted in the fatal injury. In setting that starting point, I also take into account, as far as it is proper to do so, the fact that John was on anticoagulant medication at the time.
Uplift
[20] It was not contested that an uplift was appropriate to recognise your criminal history, insofar as the present offending represents a continuation of your aggressive behaviour. You were sentenced in June last year on a charge of reckless driving causing injury, together with methamphetamine-related charges. At first blush, the immediate relevance of that offending is not readily apparent. However, the charge of reckless driving causing injury arose out of another altercation, where you drove a vehicle at a person. You also have previous convictions for behaving threateningly
2 Sentencing Act 2002, s 9(3).
3 Tepana v R [2013] NZHC 1592; Te Pana v R [2014] NZCA 55; R v Rangi [2015] NZHC 1879; Murray v R [2013] NZCA 177; R v Hakopa [2020] NZHC 2763; R v Unasa [2020] NZHC 3139; R v Needham HC Wellington CRI-2010-085-5780, 14 December 2010; R v Kokiri [2019] NZHC 501; Palmer v R [2016] NZCA 541; R v Larson [2020] NZHC 237; and R v Nepia [2019] NZHC 1932; R v Whaanga [2020] NZHC 1318; Turi v R [2014] NZCA 254; R v Wright [2013] NZHC 863; R v Maposua CA131/04, 3 September 2004; R v Evans-Whatarangi HC Hamilton CRI-2008- 068-609, 3 December 2009; Ioata v R [2013] NZCA 235; R v Harrington [2017] NZHC 170; R v Holman [2014] NZHC 438.
and assault in a domestic context. A four-month uplift results in an overall starting point of five years and four months’ imprisonment.
Personal factors
[21] The Crown accepted that a full 25 per cent discount should be extended to you for your guilty plea which was entered at a relatively early stage in the proceeding. That resulted in an indicated sentence of not more than four years imprisonment. However, I reserved consideration of any further credit for matters relating to remorse and your personal background and circumstances until more detailed information was available to me. I now have the benefit of a pre-sentence report, a cultural report, two psychiatric reports, and your counsel’s submissions upon which to properly assess any such further credit.
Personal background
[22] You have informed the various report writers that between the ages of approximately two and eight, while in care during the working week, you were […]. You have disclosed that when you initially reported the abuse you were not believed. You advised that you resorted to using cannabis from the early age of 12 and had started drinking alcohol by 15. Your schooling was unhappy, and you described moving to different primary schools, where at each you were subject to bullying. You struggled academically and left school at the age of 16, after which you were employed on a dairy farm for some four years. During this time your addiction issues escalated and you became involved with an antisocial peer group.
[23] You lost your job as a result of a shoulder injury, which required you to move home to live with your parents. On a reduced income, you resorted to selling drugs. At the time of the offending I understand you had been unemployed for some six years, having, as you described it, become quite “caught up in the drug world”. Other than your mother, it is suggested that you had little other social support networks. But it is apparent that both your parents sought to assist you through your difficulties and showed great tolerance in very trying circumstances. I note your father would accompany you at times to the local doctor in an endeavour to assist you. It is apparent that your use of methamphetamine resulted in a downward spiral marked by various
incidents when you caused damage to your parents’ house. Throughout, you have struggled with your mental health.
[24] One of the psychiatrists linked your propensity for mood instability, impulsivity and poor judgement with your history of substance abuse, and that you have experienced bouts of drug-induced psychosis. Dr McLeavey concluded, and I quote:
Mr Gardner presents with longstanding problems with emotional regulation and suicidality … the onset of which appears to have been subsequent to childhood trauma […] and exacerbated by substance misuse. His experience early on in life included abandonment […] leading to an insecure attachment style (manifest in terms of unstable relationships, including with his parents). Subsequent to this, he has presented with behavioural difficulties, intermittent mood instability and anger dyscontrol specifically.
[25] When this personal background is placed against the circumstances of the assault on your father, it is apparent there is some nexus between your personal history and your conduct that morning. However, care is required in assessing the linkage between an offender’s background and their offending, but it is incumbent on the Court to make a holistic assessment of how an offender’s particular personal circumstances may have contributed to their culpability or offending.4
[26] I accept that you endured the traumatic childhood experience […] and it does not appear from what you have reported that you received the emotional support that you needed. This appears to have affected your development during your vital years as a child and young person. You became disengaged from school and turned to drugs and alcohol. All of which, at least to some extent, can be linked to your inability to regulate your emotions and your violent and destructive behaviour. It is necessary to take this background into account in assessing your level of culpability. It in no way excuses your conduct, nor does it substantially make you less responsible, but there is a contributing link in that background that cannot be ignored.
[27] The Crown has responsibly recognised this aspect in its submissions and, in accordance with your counsel’s submission, I accept it should be recognised as a personal mitigating factor which I will allow a 12 per cent discount.
4 Waikato-Tuhenga v R [2021] NZCA 503 at [51].
Remorse
[28] The Crown has also accepted your remorse for having caused the death of your father should be recognised. A discount is available on sentencing to reflect genuine remorse that goes beyond the simple acceptance of responsibility inherent in a guilty plea.5
[29] In contrast to your reported failure to engage in rehabilitative interventions as part of the community-based sentence you were previously subject to prior to your father’s death, the pre-sentence report writer advises that you are now motivated to address the causes of your offending, and your counsel has outlined that motivation to me this morning. It was remarked that you present with a high level of remorse and that you would like to prove how sorry you are by making the changes required to prevent further offending. I can only endorse those sentiments. If you are truly sorry
— truly sorry for what you have done and wish to make some amends for the pain and anguish that you have caused to your family and, indeed, obviously to yourself, you will seek to address your personal issues and commit yourself to making the necessary changes to abstain from drugs and to lead a constructive life.
[30] You have taken some steps towards that by agreeing to engage with a residential substance use programme when you are released from prison and to re- engage with counselling […]. You have also demonstrated a willingness to complete training courses while on remand, and I also acknowledge your willingness to engage in a restorative justice process. I am satisfied that the guilt and shame that you feel for having caused the death of your father will extend well beyond any finite sentence that I can impose. I allow a further seven per cent credit for your remorse for having caused your father’s death. That results in a final sentence of three years imprisonment.
Result
[31] Mr Gardner, will you now please stand. On the charge of manslaughter I impose a sentence of three years’ imprisonment. Before I ask you to stand down, I am
5 Sentencing Act, s 9(2)(f).
required to provide you with a formal three strikes warning as that presently remains the law. The warning is this.
Three strikes warning
First strike
[32] Given your conviction for manslaughter, you are now subject to the three strikes law. I must give you a warning of the consequences of another serious violence conviction. You will also be given a written notice which contains a list of these ‘serious violent offences’.
(a)If you are convicted of any one or more serious violent offence 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.
(b)If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event the Judge must sentence you to a minimum term of imprisonment.
[33] I also make an order prohibiting publication of any reference made in my sentencing remarks to […].
[34]You may stand down.
Solicitors:
Crown Solicitor, Timaru Quentin Hix Legal Ltd, Timaru
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