R v Goldstone HC Auckland CRI 2009-044-10031

[2010] NZHC 1043

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-044-10031

QUEEN

v

JUSTIN GOLDSTONE

Hearing:         28 May 2010

Counsel:         AJF Perkins and J Kincade for Crown

D Reece and S Clark for Prisoner

Sentencing:     28 May 2010

NOTES OF SENTENCING OF MILLER J

[1]      Mr  Goldstone,  you  appear  today  for  sentence  for  the  manslaughter  of Samantha Henderson on 4 December 2009.  You are also for sentence for carrying a pistol in a public place without a lawful purpose, contrary to s 51(1)(a) of the Arms Act 1983.

[2]      An eloquent plea has been made on  your behalf for a community-based sentence.  I will tell you at the outset that you are going to prison.

[3]      Ms Henderson was your de facto partner.  You had been living with her for

18 months at the time of her death.  Although you do not have a firearms licence, in

June 2009 you obtained a double-barrelled shotgun.  You told the police that it was for the purpose of protecting you and Ms Henderson.  You have refused to disclose

R V JUSTIN GOLDSTONE HC AK CRI 2009-044-10031  28 May 2010

the identity of the person who gave you the weapon.  In interview with the probation officer you denied having it for protection, but today you have accepted that you did. Your explanation is that it related to your benefits.  In other words, there was some risk that  you were being accused of benefit fraud, as  I understood Mr Reece’s submission.   I simply don’t accept that.   It is entirely implausible that you would need a weapon to protect yourself in those circumstances.  You are choosing not to disclose to the Court your real reason for having the weapon.

[4]      As I have said it was a double-barrelled shotgun and it had been cut down to a length of 620mm.  That means that it was a pistol for the purposes of the Arms Act.  It could be operated with one hand.  And I will draw the inference that you cut it down, because the barrels were found at your property.

[5]      On the morning of 4 December you got the shotgun out and cleaned it in the lounge.  You asked Ms Henderson to pose for photographs with it.  She in turn took a series of photographs depicting you holding and presenting the weapon with your finger on the trigger.   The camera’s memory card survived the shooting and the photographs have been printed out by the police.  They demonstrate that the weapon was unloaded when you began taking photographs.   They also show that you had your finger on one of the two triggers in most of the photographs.

[6]      It follows, of course, that you loaded the gun before you shot Ms Henderson. You say that in the period of as much as 115 minutes that elapsed since you loaded it, you must have forgotten that you had done so.  That is in dispute.  The Crown asks me to draw the inference that you did know that it was loaded when you pointed it at her.  Because it is disputed it has to be proved beyond reasonable doubt, and I am asked to draw that inference from the admitted facts.

[7]      I am  satisfied  that  it  is  made  out.    You  did  know  the  gun  was  loaded. Photograph 3 shows the weapon broken with the cartridges visible.   Within a few seconds you had fired it.  It is simply not plausible that you had forgotten that it was loaded.  I think you were getting a kick out of pointing the gun at the camera and taking photographs.  I do accept that you were doing this for the purpose of having photographs taken.  In other words, it wasn’t so much a matter of pointing the gun at

Ms Henderson as pointing it at the camera.   In the end, it doesn’t make too much difference to the sentence, because on your own account you were extraordinarily reckless in that you failed to check that you emptied it before pointing it at her.

[8]      When she died Ms Henderson was sitting on a lounge suite holding the camera while you pointed it at the lens of the camera, at close range.  The gun went off.  It went off because you pulled the trigger.  The shot went through the camera, causing mortal injuries.

[9]      You were unable to contact emergency services, so you carried her to your car  and  took  her  to  a  nearby  medical  centre  for  assistance.    There  she  was pronounced dead.  You took the weapon with you to the medical centre, which gives rise to the Arms Act charge.  Your explanation, which I am prepared to accept, was that you did that to keep it safe in case anyone came into the house.

[10]     I do accept that you were deeply distressed by what you had done.  You made a statement on 7 December admitting the facts and saying that you believed your finger was outside the trigger guard.

[11]     You pleaded guilty on 23 February.

[12]     I record at this point that the Crown accepts you did not mean to pull the trigger, although you plainly applied enough force to work the mechanism.   (The evidence suggests that the trigger pressures were normal, at about 2kg, and the weapon had an operable safety catch.)  So the essence of this Mr Goldstone, is that the discharge was unintentional.

[13]     You have pleaded guilty to manslaughter by an unlawful act, discharging a pistol.  However, I have just said that you did not fire it deliberately.  An unlawful act is an act that is an offence under some legislation, and most such offences require that the act be deliberate.[1]     I asked counsel about this before the hearing.   They conferred and they’ve agreed that the unlawful act is the act of dealing with a firearm

[1] R v Myatt [1991] 1 NZLR 674 (CA).

in a manner likely to injure or endanger the safety of any person or with reckless disregard for the safety of others.[2]     As a stand-alone offence it would attract a maximum sentence of three years imprisonment.

Victim impact statements

[2] Arms Act 1983, s 53(3).

[14]     Ms Henderson was aged 20.   She was a mother to a child now aged 15 months.

[15]     There are victim impact statements from her family.  I have read all of them. They speak in heartfelt terms of the overwhelming and senseless loss that they have suffered.   They lament the impact on her  young daughter, to whom she was a devoted mother.  Her own mother says you cannot begin to comprehend her loss, and says that to call it an accident is no help, it was no accident but rather an action with a predictable result, and I agree with that.  Ms Henderson’s grandmother has had to move to Hamilton to provide support for Ms Henderson’s parents.

Personal circumstances

[16]     You are aged 21.  Your own parents separated when you were very young but your mother and stepfather have given you a good upbringing.   You left school young, but have a good employment history.  You do not report any harmful patterns of alcohol or drug use, although you did refuse to undergo a drug test.

[17]     You also declined as I have said, to explain how you came by the gun.  I will mention it because it is in the papers that there are indications that you were a prospect for the Headhunters gang.  You’ve denied that, and I will assume that you are not a gang associate.  As I have said, I will also assume that you did have the gun for protection.   That assumption favours you; the only plausible alternative explanation would be that you had it for some criminal purpose.   You have some previous convictions for minor driving offences.

[18]     The probation officer found you an immature young man with limited insight into your offending.   However, it is accepted that you are deeply remorseful and distressed by Ms Henderson’s death, you have suffered depression, you have begun attending church, and you are willing to undergo any rehabilitation programmes that may be thought suitable.  I commend you for all of that.

Sentencing principles

[19]     The maximum sentence for manslaughter is life imprisonment, but sentences vary widely.  There is no guideline judgment of the Court of Appeal, and there are few cases that are directly comparable.

[20]     I have considered a number of cases and I will list the most relevant of them in my sentencing notes.[3]   They are similar in the sense that death was unintended but resulted from some reckless act.   Some involve firearms, others use of a motor vehicle.  A parallel might be drawn with the hunting accident cases, but they are not usually charged as manslaughter.  I have also looked at cases where death resulted from a single punch followed by a fall.  In most of these cases, the act that caused

death was deliberate, although it was not meant to cause harm, or serious harm.  In cases falling into this broad category, starting points have ranged from about two years to five years imprisonment.[4]

[3] R v Wilkinson HC Invercargill SO21824, 18 June 2002;  R v Schofield HC Auckland S5/01, 24 April 2001;  R v Hare CA332/99, 15 November 1999;  Davies v Police HC Hamilton AP 35/03, 11 July 2003; R v Connon HC Wellington CRI 2008-035-1330, 24 September 2009;  R v Skerrett CA 236/86, 9 December 1986;   R v Ah Chong HC Auckland CRI 2004-004-10735, 9 August 2007; R v Matagi HC Christchurch CRI 2008-009-12096, 1 October 2009. 

[4] Some of these cases predate modern sentencing methods, but an approximate starting point may be extracted from the end sentences.

[21]     By way of contrast, starting points where a weapon was taken to the scene to threaten the victim or to commit some offence may be seven years or more.[5]     I mention those examples only to explain that such starting points have been used in cases where the offender was materially more culpable than you.  The starting point in this case must be less than that because it is clear that you meant Ms Henderson no harm and you did not intend to fire the weapon at all.

[5] R v Christie HC Gisborne CRI 2003-016-6522, 28 October 2004;   R v Pira HC Rotorua CRI 2006-063-329, 13 December 2006.

[22]     Having said that, there are many aggravating features.  A shotgun is a hunting weapon, which one can lawfully own provided one has a licence.  When cut down to facilitate use at close quarters it has no lawful purpose.  Technically it is a pistol, a weapon that is useful only against people.   I take the view that you had it for protection, so you contemplated that you might have to use it.  You had no licence to own a firearm.   That is not some minor technicality.   You cannot get a licence without learning firearm safety.   Plainly you lack even the most rudimentary understanding of that subject.  You loaded the weapon.  And you thought it cool to point it at Ms Henderson loaded, without using the safety catch, and with your finger on the trigger.  The recklessness of your behaviour defies belief.

[23]     These factors make your offending comparable to motor manslaughter cases in which death resulted from extraordinarily dangerous driving, although your case is perhaps more serious for several reasons.  A gun is inherently more dangerous than a vehicle.[6]  You deliberately pointed the loaded weapon at her and the weapon was, of course, a cut down shotgun.  Mr Reece relied on one accidental shooting case, R v Cserepanyi,  where  an  end  sentence  of  18  months  was  adopted  in  the  Court  of Appeal, but I do not find the case particularly helpful.[7]    The weapon there was defective and could be fired without using the trigger at all.  The case is also dated; modern sentencing practice is less likely to classify such deaths as accidents, and arguably more sensitive to the impact on surviving victims.  Nor do I find the case of R v Schofield useful.  The risk that the prisoner took in that case was in hindsight very serious, but it could not have been as obvious to him at the time as the risk that

you took in this case.

[6] R v Emerson CA 203/02, 9 September 2002.

[7] R v Cserepanyi CA 92/84, 18 June 1984.

[24]     The starting point is not easy.  I have accepted that you didn’t use the weapon deliberately and that would suggest a low starting point.   But the circumstances involve the deliberate pointing of a cut down shotgun at Ms Henderson with your finger on the trigger and that must place the case at the top end of the range that I have discussed.  I am going to adopt a starting point of five years imprisonment.  I will not add anything for the Arms Act charge, for which you will be sentenced concurrently.

[25]     Your previous convictions do not justify increasing the sentence and there are no other personal aggravating factors.

[26]     In mitigation the major factor is your early guilty plea.  It was entered on 23

February as I have said, but as you admitted the facts soon after the event, and I will give you the full discount of approximately 33 per cent for the plea.

[27]     The guilty plea includes an allowance for remorse, but there are cases in which an additional allowance can be made for that.  I have hesitated over this.  Your regret is profound.   You have apologised to Ms Henderson’s family.   You have undertaken counselling.  You have attempted to provide support for Ms Henderson’s daughter.   So you have done some tangible things to demonstrate your remorse. However, you have not done everything that you might.  You have failed to identify the source of the weapon and I have expressed scepticism, to put it mildly about your reason for needing protection.  I think you are putting loyalty to others first.  In these circumstances I will make no additional allowance for remorse.

[28]     Mr Reece identified other factors that might mitigate sentence.   The most significant of these was your immediate attempt to get help.  I accept that you did act immediately and  did  the  best  you  could.    But  that  is  really the  absence  of  an aggravating factor.   I make no additional allowance for it.   Nor will I make any allowance  for  previous  good  character.    You  cannot  come  to  Court  asserting previous good character when you were in possession of a sawn-off shotgun.

[29]     Nor do I make any allowance for Ms Henderson’s own contribution to this tragedy.   It is not a case of provocation by the victim.   There is no sense, as Mr Reece very properly accepted, in which it can be said that she brought this on herself.  It is not suggested that she knew the weapon was loaded.

[30]     That means the total allowance for mitigating factors is 20 months.

[31]     Mr Goldstone, your sentence for manslaughter is three years, four months imprisonment.  Your sentence on the Arms Act charge is six months imprisonment, to be served concurrently.

[32]     You may stand down.

Miller J

Solicitors:

Crown Solicitor’s Office, Auckland.