R v Gideon

[2015] NZHC 2333

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2015-054-001462 [2015] NZHC 2333

THE QUEEN

v

ALEX EMILE GIDEON

Counsel:

E M FitzHerbert and M J R Blaschke for Crown

O S Winter for Prisoner

Sentence:

25 September 2015

NOTES ON SENTENCE OF COLLINS J

Introduction

[1]      Mr Gideon, this morning I am sentencing you in relation to one charge of manslaughter1  and one charge of unlawful possession of a pistol.2     You pleaded guilty to those charges on 25 August 2015.

[2]      In sentencing you I shall:

(1)Give you the first strike warning which I am required by law to give you.

(2)       Explain your offending.

(3)       Discuss the impact of your offending upon your family.

1      Crimes Act 1961, s 177(1). Maximum penalty is life imprisonment.

2      Arms Act 1983, s 45(1). Maximum penalty is four years’ imprisonment.

R v GIDEON [2015] NZHC 2333 [25 September 2015]

(4)       Examine your personal circumstances.

(5)       Set out the starting point to your sentence.

(6)       Examine the possible adjustments to the starting point. (7)     Explain your sentence.

First strike warning

[3]      I am required to give you a first strike warning. A copy of what I am about to say will be made available to you later today.   Your conviction for manslaughter today constitutes a stage 1 offence for the purposes of s 86B of the Sentencing Act

2002.  From this point if you commit another serious violent offence except murder, you will receive a final warning.   Furthermore, if you receive a sentence of imprisonment for that offence other than a sentence of life imprisonment for manslaughter or preventive detention generally, you will serve that sentence without parole.  If you are convicted of murder you will be sentenced to life imprisonment, which you will have to serve without parole unless this would be manifestly unjust. If serving that sentence would be manifestly unjust the Judge must specify what minimum period of imprisonment you would serve.  I reiterate this warning will be provided to you later in writing and if you have any questions I am sure others will be able to explain what I have just said to you.

Your offending

[4]      Your victim was your brother, Tyrone.  He was 21 years old at the time he died.

[5]      On 19 May 2015 you were at home with your brother.  There were several other members of your family present in the house, many of whom were waiting for benefit payments to be made to enable them to buy dinner.  Your brother had arrived in Palmerston North the day before to visit your family.  That afternoon, an associate of  yours  brought  to  the  house  a  double-barrelled  sawn-off  shotgun  with  three shotgun cartridges.  You and Tyrone were handling the gun and considered buying it

from the associate.  The associate left the address and left the gun and ammunition with you.

[6]      You and your brother then loaded the gun with two cartridges.   Between

6.34 pm and 6.38 pm the two of you took turns at posing with the gun as you took photographs of each other.  While in the bedroom, you held the gun and cocked the hammers behind each barrel.  As you posed for a photograph, you aimed the gun from your hip at your brother with your fingers inside the trigger guard.

[7]      Whilst in this position, the right hand hammer was actioned, causing the gun to discharge one barrel into your Tyrone’s torso.  As the gun recoiled upwards, the second barrel was discharged into the ceiling of the room.

[8]      After the shots were fired, your mother ran into the bedroom.  You and your mother commenced CPR until emergency services arrived.  Tragically, Tyrone died at the scene.

[9]      It has since been determined that the firing mechanisms in the gun were badly worn and the right side hammer could not be relied upon to be safely cocked to the rearward position.  The trigger pressure required for the right trigger was unable to be measured because of its extreme unreliability and would fire at the slightest touch to its trigger.   This I understand is a common feature of older exposed hammer shotguns.

The impact of your offending

[10]     The impact of your offending on you and your family has been devastating.  I will not elaborate on this matter, as I respect the choice of your family and other members of Tyrone’s family to decline to give victim impact statements.

[11]     However, I do appreciate the sorrow your family is enduring.  I also accept you will struggle for the rest of your life with the burden of knowing you killed your brother in totally avoidable circumstances.   I also acknowledge you have accepted responsibility for what has happened.  I fully appreciate your family does not want you to be sent to prison and that Tyrone would not want that outcome.  My task is to

uphold the law of New Zealand and apply it in equal measure to all in society.  I will, however, strive to impose the least restrictive outcome I can within the constraints of the law.

Your personal circumstances

[12]     You are now 21 years old.  You left school when you were about 13 or 14. You have some history of previous offending.  You have 11 previous convictions.  In my assessment, your previous offending is not an aggravating factor.

[13]     Ms Reader has prepared a psychological report.  She records that your mental health is very low.  She says you are not suicidal but that you do need to address your current mental health challenges.  If you do not then there is a real potential you will develop more severe trauma.   Disturbingly, Ms Reader also states that you require intensive psychological treatment to address your offending related needs and anti-social attitudes.

[14]    You have four younger brothers.   Tyrone was your older brother.   The circumstances of your offending have now made you the oldest child.  You currently live with your mother, her partner, your partner and your two younger brothers in the same house where the offending occurred.  You have a two year old child from a previous relationship and one child on the way with your current partner.  You rely on your family and your partner for support.

Starting point

[15]     There is no tariff sentence for manslaughter.   Sentences for manslaughter have ranged from conviction and discharge through to life imprisonment.  This range of sentence reflects the wide spectrum of circumstances that can  give rise to a conviction for manslaughter.  What they all have in common is that death has been an unintended consequence of an unlawful act.3    The extent of the harm resulting

from the offence must also be taken into account.4

3      R v Efeso HC Auckland CRI-2008-092-7925, 24 October 2008 at [25].

4      Sentencing Act 2002, s 9(d).

[16]     The Crown suggests a starting point of between four and a half and five years’ imprisonment.  In his written submissions Mr Winter properly acknowledged a starting point of four and a half years’ imprisonment was appropriate.

Comparable cases

[17]     In assessing the appropriate starting point for your sentence, I have been assisted by other manslaughter cases that resulted in a death that was unintended but was caused by some reckless act.  Each case has to be assessed on its facts.  I have examined in particular other cases in which death has been caused by the accidental discharge of firearms and cases where death was accidentally caused by reckless driving.

[18]     I refer in particular to R v Goldstone.5    In that case Mr Goldstone, who was also  21  years old,  and  his  partner were posing  for pictures  holding  a  sawn-off shotgun when Mr Goldstone shot and killed his partner by accident.  That case is similar to your situation, although as Mr Winter has stressed there was one particularly aggravating feature to that case that is not present in your circumstances. Mr Goldstone had the gun for protection and he did not divulge the source of his weapon.  In the Goldstone case Miller J adopted a five year starting point.

[19]     When  assessing  your  culpability,  I  find  the  following  four  factors  are particularly significant:

(1)A shotgun is a hunting weapon, which a person can lawfully own if he or she has a licence.  When it is cut down to facilitate its use at close quarters, it has no lawful purpose.

(2)You participated in the loading of the gun in circumstances that did not require it to be loaded.

(3)After the gun was loaded, you pointed it at your brother in some form of pose as you were taking photographs.

(4)Not only did you point the gun at Tyrone, but you had your fingers on the trigger while you were pointing it at him.

[20]     Regardless of whether you had forgotten the gun was loaded at the time the gun was discharged, your actions can only be described as grossly reckless.   You broke every single safety rule when handling the gun.

[21]     I accept the gun was subsequently found to be defective, but I do not find this mitigates your culpability to any significant extent.  The four aggravating factors I have identified demonstrate a high level of culpability on your part.6

[22]     Mr Winter on your behalf says that your brother’s conduct by joining in with you to “play” with the gun perhaps mitigates your culpability.  For the reasons I have just outlined, I do not accept that submission.  Regardless of whether Tyrone knew the gun was loaded, he bears no responsibility for your actions when pointing the loaded gun at him with your fingers on the trigger.

[23]     Ultimately, after very careful reflection, I have adopted a starting point of four and a half years’ imprisonment.  I have done so, accepting that whilst you have learnt a very harsh lesson, the community as a whole needs to be aware that the reckless use of firearms is something that society and the courts must condemn.

Adjustments

Personal aggravating factors

[24]     I  do  not  consider  there  to  be  any  personal  aggravating  factors  in  your offending.

Mitigating factors

Age

[25]     You are 21 years old.  The courts have repeatedly stressed age is a mitigating factor in sentencing because of the importance of keeping youth offenders out of

prisons as imprisonment may have a more harsher effect on an adolescent than an adult.7     The difficulty young people can have regulating their behaviour and impulses,8  the lack of appreciation of the full gravity of their offending9  and their capacity  for  rehabilitation  are  also  factors  that  weigh  against  sentencing  young people to imprisonment.10

[26]     The Court of Appeal in Churchward v R has acknowledged adolescent brain development offers an explanation about risk-taking and adolescents may take more extreme risks because they attach different values to rewards than risk-taking provides.11

[27]     I accept that there is some element of adolescent risk-taking to your offending because it is the only logical explanation for your extremely reckless behaviour. However, you are near the end of the spectrum in respect of which it is possible to provide any discount for your age, particularly as you yourself are a father and carry adult responsibilities.

[28]     I am prepared to give you a discount of three months for your age.

Guilty plea

[29]     You pleaded guilty at a very early stage.   Therefore you are entitled to a significant discount.  I am prepared to give you a discount of 12 months to reflect your guilty plea.

Remorse and family circumstances

[30]     You describe yourself as having a close bond with your family.  I understand that you have a young child, and another is due very soon.  I also appreciate that you suffer from the guilt and trauma of being responsible for the death of your own

brother.    I understand  you  now accept  that  you  knew the gun  was  loaded,  but

7      R v Chankau [2007] NZCA 587 at [26]; R v Slade [2005] 2 NZLR 526 (CA) at [43].

8      Churchward v R [2011] NZCA 531, (2011) 25 CRNZ 446 at [77]; R v Slade, above n 7, at [43].

9      R v Accused (CA265/88) [1989] 1 NZLR 643 (CA) at 655; R v Alletson [2009] NZCA 205 at

[66]; Overton v R [2011] NZCA 648.

10     Churchward v R, above n 8, at [77]; Overton v R, above n 9; R v Wilson [1989] 2 NZLR 308 (CA).

11     Churchward v R, above n 8, at [53].

somehow you forgot that fact in the moments leading up to the gun going off.  I am satisfied you are genuinely remorseful.  I will reduce your sentence by a further six months to reflect this fact.

Previous good character

[31]    Although your previous offending is insignificant, there are 11 previous convictions,  the  most  recent  being  breach  of  conditions  of  supervision  and community detention from April 2015.  Your prior offending does not entitle you to any further discount for previous good behaviour.

Overall assessment

[32]     Before  reaching  my final  decision  on  your  sentence  I have  reflected  on whether or not a sentence of two years and nine months’ imprisonment reflects the purposes and principles of the Sentencing Act 2002.

[33]     In my assessment, the purposes and principles of the Sentencing Act 2002 set out in ss 7 and 8 of that Act are achieved by the sentence I am about to impose.  In particular, it takes into account your personal background with a partly or wholly rehabilitative purpose.12

[34]     In my assessment, a sentence of two years and nine months’ imprisonment

will:

(1)hold you accountable for the harm you did to Tyrone, your family and the community;13

(2)       promote a sense of responsibility for your offending;14

(3)       denounce your conduct;15

12     Sentencing Act 2002, s 8(i).

13     Section 7(1)(a).

14     Section 7(1)(b).

15     Section 7(1)(e).

(4)       deter others from similar offending;16

(5)       assist in your rehabilitation;17

(6)       take into account the gravity of your offending and your culpability;18

and

(7)be    the   least    restrictive    outcome    that    is    appropriate    in    the circumstances.19

Conclusion

[35]     Mr Gideon, can you now please stand.

[36]     On the charge of manslaughter I am sentencing you to a sentence of two years and nine months’ imprisonment.

[37]     On the charge of unlawful possession of a pistol I am sentencing you to

18 months’ imprisonment, which is to be served concurrently.  This means the time you will serve for these sentences will run together.

[38]     Please stand down.

ADDENDUM

[39]     Mr Gideon, you are currently the subject of a supervision order.  In view of the sentence that I have just imposed that supervision order is now formally quashed.

16     Sentencing Act 2002, s 7(1)(f).

17     Section 7(1)(h).

18     Section 8(a).

19     Section 8(g).

D B Collins J

Solicitors:

Crown Solicitor, Palmerston North

WinterWoods, Palmerston North for Prisoner