R v Hawkins

[2016] NZHC 554

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-443-035 [2016] NZHC 554

THE QUEEN

v

SAMUEL LANCE HAWKINS DANIEL GEORGE GAVIN JASON JOHN CAMPBELL

Hearing:	04 April 2016
Appearances:	J Marinovich for the Crown K Pascoe on behalf of S W Hughes QC for Hawkins K Pascoe for Gavin P Mooney for JC
Sentence:	04 April 2016

SENTENCING NOTES OF MUIR J

Counsel:

S W Hughes QC, Barrister, New Plymouth

Solicitors:

J Marinovich, Crown Solicitors, New Plymouth

K Pascoe, Nicholsons, New Plymouth

P Mooney, Mooney Webb, New Plymouth

R v HAWKINS, GAVIN & CAMPBELL [2016] NZHC 554 [4 April 2016]

Introduction

[1]      Mr Gavin, Mr Hawkins and Mr Campbell, you appear today to be sentenced for a single charge of manslaughter which you each face in relation to the death of the late Christine Fairweather.  I gave a sentence indication to you on 12 February

2016 in which I indicated that the maximum sentence you would each face if you pleaded guilty was nine months of home detention coupled with 100 hours of community work.  Each of you pleaded guilty following that indication.  In the result the maximum sentence I may impose, other than in the circumstances identified in s 116(2) of the Criminal Procedure Act 2011, is that which I have indicated.  I intend to annex to these sentencing notes a copy of the earlier indication given by me.  That permits me to abridge the material that featured in my earlier indication.  However, regrettably I must record briefly the facts of your offending.

Facts

[2]      The three of you set off together in Mr Gavin’s car late at night on Saturday 2

August 2014.  The conditions that evening were described by some of the witnesses as atrocious with heavy rain and strong winds.  You stopped along Waihi Road and Mr Hawkins and Mr Campbell proceeded to drag two metal gates into the middle of the road from their location on the verge where they were protecting road works. While you did this Mr Gavin remained in the car.  You blocked off both the north and south bound lanes of Waihi Road with the gates and then drove off.  This foolish and immature action was to have devastating consequences.

[3]      Christine Fairweather had been babysitting her grandchildren at Kaponga when she left to drive back to Hawera at about 11 pm on 2 August 2014.   Mrs Fairweather was travelling southbound on Waihi Road towards Hawera when she hit the  gates  you  had  set  up  across  the  southbound  lane.    In  my  earlier  sentence indication I pointed out that Mrs Fairweather, as confirmed by her husband in his comments at the restorative justice conference, was a meticulous and careful driver and no part of the accident that occurred can be attributed to her.  She ran headlong into the trap that you had set.

[4]      After impacting  the  gates  she  put  her  hazard  warning lights  on  and  her headlamps on high beam and then proceeded, with the assistance of another motorist who stopped at the scene, to remove the gates from both sides of the road.  As she did so she was struck by a utility vehicle that was travelling northbound.   Mrs Fairweather was flung at least 10 meters down the road.   Despite the very best endeavours of the driver of that vehicle to resuscitate her she was pronounced dead at the scene.   He subsequently pleaded guilty to careless use of a motor vehicle causing death but I wish it to be recorded that, from my perspective at least, his role in the death of the late Mrs Fairweather was very much subordinate to that of you three defendants.

[5]      The police commenced an investigation that was covered extensively by the media.  You were all identified approximately two months later as the perpetrators, despite numerous previous denials on the part of each of you that you were involved.

Victim Impact Statements

[6]      At the sentence indication I made reference to the several  victim impact reports that had been provided to me.  I had received them from Mrs Fairweather’s husband, her two sisters, step-daughter, son and a close friend.  I do not propose to refer to the contents of each of those statements again.   I do wish, however, to acknowledge that Ms Fairweather’s death was a traumatic loss for her close knit and loving family to which she gave so much in life.  I also wish to acknowledge again her loss to the community to which she made numerous contributions including assisting at the Hospice Shop, the Lysaght Art Gallery and visiting rest homes in the Taranaki District.  She is a woman who is sorely missed both by her family and her community.

[7]      I observed in my sentencing indication that it was one of the tragic ironies of this case that Mrs Fairweather’s civic mindedness was in fact one of the contributing factors in her death.  Clearly she was a selfless and considerate person to the very end of her life.

[8]      It goes without saying therefore that your offending has had a profound and devastating effect on Mrs Fairweather’s family and friends and the community of the Taranaki District.

Sentencing Approach

[9]      I come then to consider what is in my view an appropriate sentence.

[10]     The approach which I follow is that established by the Court of Appeal in several well-known cases.1      In summary, it involves consideration of the circumstances and seriousness of the offending and setting what is known as the starting point with the aid of any guideline decisions or comparable cases.   I then need to consider whether there are any mitigating factors relevant to each of you personally which might reduce that starting point.

[11]     At the time of providing my sentencing indication I reminded myself of the principles and purposes of sentencing,2 including denunciation, deterrence and, because of your age, rehabilitation.

[12]     When I compared your actions to broadly comparable manslaughter cases3 I concluded that a starting point of two years six months imprisonment was necessary to reflect the seriousness of the offending.  This was not simply a prank gone wrong and in my sentencing indication I rejected any description of it as simple “tomfoolery”.

[13]     You have each spoken of the peer pressure you all felt during and after the offending.  No doubt your actions were influenced by peer pressure, and a desire to act out and probably cultivate a somewhat rebellious image.  However, all you have succeeded in doing is identifying yourself as foolish and immature.  There is nothing

“cool” about gross stupidity.

1      R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).

2      Sentencing Act 2002, ss 7 and 8.

3      I considered among others: R v Elliot & Chad [2014] NZHC 214; R v King [2012] NZHC 3072;

R v Hetaraka [2015] NZHC 2015; R v McWhannel HC Palmerston North CRI-2009-054-1094,
29 July 2010; R v Vaughn HC Auckland T121/98, 12 March 1999.

[14]     Although I am prepared to accept that none of you intended to cause an accident but rather simply to disrupt traffic flows with a road closure I previously described your actions as, and I quote from my sentencing indication, “rank stupidity without so much as a glimmer of intelligent forethought as to the possible consequences of your actions”.   I repeat those observations.   The obvious risks associated with placing any barricade across a road were greatly exacerbated by the fact that:

(i)the gates were not designed to be placed within traffic flows and they had no reflective protection;

(ii)being of the dimensions and weight that is described in the materials I have seen, they represented a very significant obstacle and potential danger to motorists;

(iii)the weather at the time was particularly adverse, further increasing the chances that an approaching motorist would not identify the gates before impact; and

(iv)although there was some street lighting you placed the gates between two sets of lights such that the pool of light provided by them did not illuminate the gates.

The risks associated with such a course were so obvious as to defy description.  It particularly  surprises  me,  Mr  Gavin  and  Mr  Hawkins,  to  learn  that  you  are motorcross riders and as young men who have ridden motorcycles for some time you must have appreciated, as I said in my sentencing indication, the huge risks that were presented to any motorcyclist who happened to be riding on that road that evening, let alone those to the driver of any motor car.

[15]     All  of  those  factors  mark  this  offending  out  as  that  which  requires  the significant denunciation of this Court.

Personal circumstances and guilty plea discount

[16]     I now come to  consider  your personal  circumstances  and any mitigating factors that are relevant in that context.  I will address each of you separately in that respect.

[17]     The issue which I focus on principally is that of remorse of which I was unable to make a full assessment at the time of my earlier sentencing indication.

Mr Daniel Gavin

[18]     Mr Gavin, you are 21 years old now, living at home with your parents and are currently  unemployed.     The  report  which   I  received  from  the  Corrections Department highlights the role peer pressure played in your part of the offending as well as the pressure you faced following the offending to keep quiet.   That report also highlights your remorse.  You will be aware that due to the serious nature of the offending the report in fact recommends imprisonment.   That sentence is not supported by the Crown and is in any event unavailable based on my earlier sentence indication in February.

[19]     Indeed  the  Crown  submits  that  of  the  three  offenders  you  have  best demonstrated insight into your offending and you have shown genuine remorse.  It accepts that a reduction from the earlier indicated sentence could be appropriate.  I agree.

[20]     Your  counsel  emphasised  your  capacity to  rehabilitate  and  your  genuine remorse,   demonstrated   by   your   full   participation   in   the   restorative   justice conferences and offers of community service and a further offer to speak at local high schools on the dangers of peer pressure and the importance of confronting honestly and in a timely way the consequences of your actions.

[21]     There is an old expression Mr Gavin, of which I am sure you are now acutely conscious and which I commend to you in the context of any of the talks you give to such high schools.  It is “show me your friends and I will tell you who you are”.  It is very important as you progress through life that you choose your friends carefully.

[22]     I note also that you have offered written apologies to Mrs Fairweather’s family and friends.  I have read those. They strike me as very genuine expressions of contrition on your part.

[23]     At the conference you spoke of the embarrassment and disappointment that you felt when you had to tell your parents what you had done and the humiliation that you had earlier lied about your involvement when Mrs Fairweather’s family and friends were desperate for answers and for closure.  You also told the family you are no longer friends with Mr Hawkins or Mr Campbell, that you have turned your life around and that you want to move forward without them in your circle of acquaintances. You have further offered to undertake community work.

[24]     I have also read the letter that you have written to Mr Hart, the driver of the vehicle that hit Ms Fairweather.  I agree with the sentiments that you have expressed in that letter.  I agree also with the comments expressed by various family members at the conferences that you have exhibited a genuine remorse and that that is something which I may take into account today.

[25]     The authorities recognise that a reduction of up to 10 per cent of an available sentence may be appropriate in cases of genuine remorse and an offer to amend and in the circumstances of this case I consider that discount available to you.4

[26]     As I stated at the time of the sentence indication, a further discount of 10 per cent is appropriate in my view to reflect your youth and your capacity for rehabilitation.  Finally, as also indicated, you are entitled to a maximum 25 per cent discount for your early guilty plea.5   All of that would mean that, before I came to consider whether home detention was appropriate, a sentence of 18 months imprisonment would, in my view, have been warranted.

Mr Samuel Hawkins

[27]     Mr Hawkins, you are 19 years old and you currently live with your mother and younger brother.  You too are currently unemployed.  The pre-sentence report

4      Sentencing Act 2002, s 9(2)(f) and s 10.

5      R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

highlights the impact of peer pressure on your offending also.  It recommends home detention and community work.  You have a minor criminal history, at least in terms of the criminal history which predated my sentencing indication, not one relevant in terms of the sentence I impose today.  More damning, however, is the fact that you were arrested the day before that sentence indication for theft of a light beacon from a site of a large fire where the fire service was in attendance.

[28]     You attended two restorative justice conferences with the family and friends of Ms Fairweather.   I accept that attendance of itself will have been a difficult experience  for  you  in  that  it  required  you  to  directly  confront  the  anger  and continuing grief of Mrs Fairweather’s family and friends.  However, in reviewing the notes of those conferences I, like the family and Mr Marinovich for the Crown, am left with the impression that you have not yet fully grasped the consequences of what you did and your concerns are more for the impact those events have had on your own life than the impact on the lives Mrs Fairweather has left behind.

[29]     Actions in this sense, Mr Hawkins, speak louder than words.  I cannot accept that anyone genuinely remorseful would have engaged in the type of subsequent offending you have, given the obvious safety consequences of the theft of an emergency beacon.  Like the family I have a concern that to date you appear to have learnt little from Mrs Fairweather’s tragic death to date.  My hope is, however, as you reflect further on these events and the comments that I have made that it will bring you to a point of proper acceptance.

Mr Jason Campbell

[30]     Mr Campbell, you are the youngest of the three offenders at 18 years of age. You already have quite a significant criminal history, presenting a particularly worrying pattern for someone of your comparative youth.  I am concerned that you have offended further since this incident.

[31]     You are living at home with your parents and siblings and four days a week you  attend  the  Taratahi  Farming  course.     Your  enrolment  in  that  course  is encouraging and I note advice you would like to be able to continue in it despite a sentence of home detention.

[32]     The  pre-sentence  report  noted  your  tearful   demeanour  and  that   you demonstrated some remorse saying that you felt “gutted”.  However, you failed to attend a restorative justice conference with the family despite earlier indications that you would.   Your counsel submits that this was because you are not emotionally equipped to yet face the consequences of your own actions.  It is disappointing that you felt yourself unable to do so.  It illustrates to me that you continue to place your own self-interest ahead of that of Mrs Fairweather’s family and friends.  Although the phrase has its limitations, because one would expect no less of any responsible female offender, the suggestion by one of the victims that you owe it to them to “man up” has some resonance with me.  I am not in that context prepared to allow any further discount for remorse.

[33]     In that sense you are in the same position as Mr Hawkins whereby the only discounts that I consider applicable are a 10 per cent discount for youth and a 25 per cent discount on account of your early guilty plea.   In the result, the period of imprisonment that I would impose on both you Mr Campbell and you Mr Hawkins would  be  20  months  of  imprisonment.    That  of  course  is  subject  to  the  home detention regime to which I now turn.

Home detention

[34]     At the time of the sentence indication I considered that because the end sentence reached is one of short-term imprisonment for all of you, it was appropriate to commute this to one of home detention.6

[35]     I noted at the time that the Court of Appeal has stated that when sentencing young offenders the Court must give emphasis to the principles of rehabilitation and reintegration into society.7     It is in society’s interests that such occur and imprisonment, with all its attendant negative influences, is seldom conducive to that

end.8

6      Sentencing Act 2002, s 15A(1)(b); Fairbrother v R [2013] NZCA 340 at [30].

7      R v K (2003) 20 CRNZ 62 (CA) at [22].

8 At [22].

[36]     The pre-sentence reports have confirmed to me that a sentence of home detention can, from a technical perspective be imposed on each of you and it is appropriate in this case.

[37]     In  addition  to  the standard conditions  of home detention  I adopt  all  the recommended conditions in those reports and such are to be considered a part of this sentence.  It is plainly important for the purposes of rehabilitation and re-integration that you continue to be involved in training and receive the support and guidance of your families.  I do hope that each of you understand that in directing a sentence of home detention and community work I am significantly influenced by your youth and my desire to see you rehabilitate yourselves.   In my view such sentences best maximise the chances of your becoming productive and useful members of society, while  holding  you  properly  accountable  for  what  was  grossly  irresponsible behaviour.  Home detention coupled with community work will also enable you to continue to be involved in your communities and to provide some tangible compensation to those communities for the consequences of your actions.

[38]     I need now to make some additional remarks to Mr Campbell in respect of his previous offending.

[39]     Mr Campbell you were sentenced in the District Court on 16 March 2016 to six months community detention and nine months supervision for offences of male assaults female and wilful damage.  I cannot impose a sentence of home detention for  this  offending  without  first  addressing  these  previous  community  based sentences.

[40]     Section 20A of the Sentencing Act 2002 says that in these circumstances the alternatives are either that I defer commencement of a home detention sentence for the current offending until conclusion of the existing community based sentences or alternatively that I cancel the existing community based sentence and impose a new sentence reflective of all the offending.  In doing so I must be mindful of what you have heard referred to today as the totality principle.

[41]     I heard from  your counsel and Mr Marinovich in chambers prior to  the commencement of the sentencing in relation to that issue.  Both are agreed that the appropriate course is for me to cancel the previous sentence of community detention and supervision and to add an additional increment to the sentence of home detention which I now intend to impose on the manslaughter charge.  It is important that that additional increment recognises the seriousness of the previous offending, involving as it did domestic violence.

[42]     In my assessment the correct outcome is to add to the sentence of home detention which I intend to impose today an additional period of three months home detention to reflect the previous offending.  I will simultaneously cancel the existing sentences of community detention and supervision and pursuant to s 20A(4)(b) of the Sentencing Act.    I refer these sentencing notes  to  the District  Court  which imposed that previous sentence.

[43]     That brings me then to the final sentences to be imposed on each of you.

Final sentence

[44]     Mr Gavin would you please stand.  Mr Gavin, in your case the final sentence I arrive at is one of seven months home detention and 100 hours of community work, to be served concurrently.

[45]     You may be seated.

[46]     Mr Hawkins, please stand.  Mr Hawkins in your case the sentence I impose is that of nine months home detention and 100 hours of community work, to be served concurrently.

[47]     You may be seated.

[48]     Mr Campbell, the sentence that I impose in relation to the current offending would have been nine months home detention and 100 hours of community work. For the reasons that I have previously explained relating to your previous offending that sentence is uplifted to 12 months home detention and 100 hours of community

work to be served concurrently.   The sentences imposed on 16 March 2016 are simultaneously cancelled.

Postscript

[49]     Mrs Fairweather was a kind and compassionate woman who despite these tragic events would, according to her family, only have wanted the best for each of you.  Recrimination was simply not a part of her vocabulary.  She was a generous- spirited woman.  You have heard that she was the glue in her family and likewise part of the glue that makes society work.  Honour the memory of a fine woman by

straightening your lives out and making the best of them now.

Muir J

ANNEXURE

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT

2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT JC PURSUANT TO SECTION 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

THE QUEEN

V

SAMUEL LANCE HAWKINS DANIEL GEORGE GAVIN JC

Hearing:  12 February 2016

Appearances:              J Marinovich for the Crown

S W Hughes QC for Hawkins
K Pascoe for Gavin
P Mooney for JC

Indication:                  12 February 2016

CRI-2015-443-035 [2016] NZHC 150

SENTENCE INDICATION OF MUIR J

Counsel:

S W Hughes QC, Barrister New Plymouth

Solicitors:
J Marinovich, Crown Solicitors, New Plymouth
K Pascoe, Nicholsons, New Plymouth
P Mooney, Mooney Webb, New Plymouth

R V HAWKINS, GAVIN & JC [2016] NZHC 150 [12 February 2016]

Introduction

[50]     Mr Gavin, Mr Hawkins and JC, because the background to and the reasons for my sentencing indication are reasonably extensive I think the fairest course is for me to indicate now what my sentence indication will be and then to elaborate on that background and reasons.

[51]     In my view an appropriate sentence for you is one of home detention coupled with community work and I will now explain how I get to that position.

Background

[1]      You each appear before me today to seek a sentence indication in respect of a single charge of manslaughter that you each face in relation to the death of Christine Fairweather.

[2]      As  required  by  the  Criminal  Procedure Act  2011,  I  have  conducted  the hearing in open court.  There are members of the media present I note.  I am sure I do not need to remind the media that it is an offence to publish any information about a request for a sentencing indication or about any indication that is given.

[3]      I have received from the Crown a copy of the agreed summary of facts.   I have also considered the written submissions filed by your counsel and the Crown, and the submissions that have been made to me this morning and the victim impact reports.

[4]      I am satisfied on the information available to me that it is sufficient for the purposes of giving a sentencing indication.  The indication I will give today remains open until Friday 26 February 2016.

Facts

[5]      The agreed summary of facts records that between 10:30 pm and 11 pm on

Saturday 2 August 2014 the three of you set off in Mr Gavin’s car.   You were

travelling north along Waihi Road towards Normanby when you stopped between Von Tempsky Street and Atkinson Street.  The weather at the time was adverse with heavy rain and high winds.

[6]      In August 2014 contractors were working on laying fibre optic cable between Normanby Township and Hawera.  The contractors had dug holes in the grass verge between the footpath and Waihi Road at various points along the road.  Metal gates were used to form cages around those holes.  The gates comprised galvanised steel frames with orange wire netting, and measured approximately 1.5 x .8 metres and weighed approximately 20 kilograms.  They had detachable hinges enabling them to be locked together into a square cage.

[7]      When you pulled over Mr Gavin stayed in the car and Mr Hawkins and JC exited the vehicle and removed four gates that had been placed around one of the excavations on the side of the road. They placed these gates across Waihi Road, with two gates blocking the north bound lane and two gates blocking the south bound lane.  The gates were connected at their hinges and set up on an angle to allow them to  remain  upright.    The  gates  substantially blocked  both  lanes.   After  you  had finished setting up the gates the three of you then drove off.

[8]      Christine Fairweather had been babysitting her grandchildren at Kaponga when she left to drive to Hawera at about 11 pm on 2 August.  She was travelling southbound on Waihi Road towards Hawera when she hit the gates erected across the southbound  lane  resulting  in  grazing  and  denting  to  the  right-hand  side  of  her vehicle.  Ms Fairweather stopped, with her hazard lights on and her headlights on full beam.  As she got out of her car another vehicle that had been driving south pulled up behind her.  The driver of this vehicle assisted Ms Fairweather to remove the gates from the southbound lane.

[9]      Ms Fairweather then picked up one of the two gates blocking the northbound lane and carried it across onto the grass verge.  She returned to pick up the remaining gate and as she did was struck by a Mazda utility driven by Mr Hart travelling in that direction.  Mr Hart says he was distracted by Ms Fairweather’s stationary vehicle.  In the diffused lighting and weather conditions Ms Fairweather clearly did not see his

approaching vehicle.   Ms Fairweather was flung at least 10 meters up the road. When the emergency services arrived a short time later she was pronounced dead at the scene.

[10]     The police commenced an investigation.  This received considerable media attention.  You were all identified two months later.  When interviewed Mr Gavin said that, although he was driving the car, Mr Hawkins and JC initiated the plan, and carried it out, while he remained in the vehicle.  Mr Hawkins admitted placing the barriers on the road with JC, but said that Mr Gavin had put them both up to it.  JC initially denied any involvement in placing the barriers across the road but later admitted the same.

[11]     Mr Hart was charged with careless driving causing death to which he pleaded guilty.

Principles and purposes of sentencing

[12]     In giving this sentence indication I have taken into account a number of sentencing purposes and principles as set out in the Sentencing Act 2002.

[13]     The most relevant of the s 7 purposes I consider to be:

(a)       holding you accountable for the harm done to the community by the offending;

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

(c)       denouncing your conduct;

(d)      deterring you and other persons from such offending; and

(e)       assisting in your rehabilitation and reintegration into society.

[14]     The most relevant of the s 8 principles are in my view the requirements to:

(a)       take into account the gravity of the offending including the degree of culpability;

(b)take into account the seriousness of the offence as indicated by the maximum penalty; and

(c)       impose  the  least  restrictive  outcome  that  is  appropriate  to  the circumstances.

Submissions

Crown

[15]     The Crown says that the principal aggravating feature of your offending is the extent of the harm resulting from your actions, being the quite unnecessary death of Ms Fairweather and the impact this has had on her family.9    The Crown also says that your previous criminal convictions are likewise aggravating features.10     The Crown submits, on the other hand, that the mitigating features of your offending

include your youth, an early guilty plea, if that were to be entered, and any remorse shown by you.   The Crown refers to the sentence imposed on Mr Hart being 100 hours of community work, and says that your level of criminality and culpability is substantially higher and warrants a response at what it terms a more “elevated level”.

[16]     The Crown submits that a starting point of imprisonment is appropriate to reflect the fact that your actions in placing the gates across Waihi Road were always going to have a high chance of ending in tragedy.  However, the Crown accepts that a sentence of home detention and community service could fulfil the purposes of the Sentencing Act, including denunciation and deterrence.

JC

[17]     On behalf of JC Mr Mooney seeks a sentence of community work.   He submits that his client’s actions represent the irresponsible antics of a young man

without proper forethought as to the possible consequences.   He says  that JC’s

9      Sentencing Act 2000, s 9(1)(d).

10     Sentencing Act 2000, s 9(1)(j).

culpability lies  in  his  obstruction  of transport,  a criminal  action  that  is  akin  to nuisance.  He says this set off a chain of tragic events, all of which were possible consequences but unlikely to have been foreseen.  Mr Mooney says that you were 16 at the time of the offending and have recently returned to live with your parents.  He points out that you are now enrolled in an agricultural training course.

Mr Gavin

[18]     Mr Gavin, your counsel Ms Pascoe seeks a conviction and discharge, or in the alternative a community based sentence.   She reminds the Court that the consequences of your offending must not be given so much emphasis that the nature of your actions lose their true significance.11     She says that your offending was foolish and immature, acknowledging that although you waited in the car for your friends to move the gates you have equal culpability with them.  Ms Pascoe submits that as you were only 19 at the time of the offending your youth is a mitigating feature.  She emphasises that you now have full time work as a farm assistant and

have relocated to Rotorua, away from the negative influences in your life.   She submits that you are trying to get your life back on track.  She says that you are and always have been very remorseful for what has occurred, that you have written a letter of apology to the Fairweather family and have expressed a willingness to attend a Restorative Justice Conference.  She says that you wanted to come forward and confess your involvement much earlier but were under significant peer pressure not to do so.

[19]     Your parents and aunt have each written letters to the Court identifying, from their perspective, the extent of your remorse and confirming that you have moved away from Hawera to recalibrate your life.  They all say that you are a caring young man.

Mr Hawkins

[20]     Mr Hawkins, on your behalf Ms Hughes QC seeks a non-custodial sentence of community work and community detention, or in the alternative home detention.

She submits that your actions constitute ‘tomfoolery’ gone tragically wrong with Ms

11     R v Leuta [2002] 1 NZLR 214 (CA) at 230.

Fairweather’s death being the unintended and uncontemplated consequence of immature decision making.  She says that although it is clear that blocking the road in the way that you did could lead to circumstances where someone was killed, you simply did not consider the consequences of your actions.  She notes that you did eventually make a full admission to the police, you are remorseful and want to attend a Restorative Justice Conference and that you have written a letter of apology.   I have read  that  letter.    Ms  Hughes  also  submits  that  your parents  are  united  in supporting you and can provide an address for home detention or community detention.   She further advises the Court that you have been in work with a local engineering firm and expect to pick up more work.   Finally, she submits that you have grown up considerably since this offending.

[21]     I have received and considered a number of victim impact statements.  These are from Ms Fairweather’s husband, her two sisters, her step-daughter, her son and a close friend.   They speak to the waves of grief which have radiated out from this tragic death.  Ms Fairweather was clearly a much loved wife, mother, grandmother and friend.  She is described as a selfless woman whose life was spent in the support of others within her wider family and community.  She had a major support role in relation to her step-daughter who has an autistic son.  She worked tirelessly in the community including volunteering at the hospice shop and the Lysaght Art Gallery and visiting rest homes.  Clearly the Taranaki District has lost a sterling citizen and the family an exemplary wife, mother and grandmother.  It is one of the tragic ironies of this case that Ms Fairweather’s community mindedness, again demonstrated in her decision to remove the obstruction from the north bound lane, played a role in her senseless death.

[22]     In summary therefore, it is clear that your offending has had a profound and

devastating effect on Ms Fairweather’s family and friends.

Sentencing approach

[23]     I come then to consider what, in my view, is an appropriate sentence.  The approach which I follow is that established by the Court of Appeal in several well-

known cases.12     In summary, it involves consideration of the circumstances and seriousness of the offending and setting what is known as the starting point with the aid of any guideline decisions or comparable cases.  I then need to consider whether there are any mitigating features relevant to you personally which might reduce that starting point.

[24]     There is no tariff or guideline case for manslaughter.   This is because the circumstances of manslaughter vary greatly.13   Instead, the appropriate starting point is to be found by reference to similar cases.   The maximum sentence is life imprisonment.

[25]     Many judges before me have commented on how difficult sentencing for manslaughter can be for the simple reason that no sentence can ever bring one’s loved ones back or make up for their death but, by the same token, there is, as here, often no intention to cause such serious harm.

Analysis

[26]     I regard the paramount purpose of any sentence the Court imposes as being to denounce and deter your conduct.   I accept Ms Pascoe’s submission that the consequences of the offending must not overwhelm the nature of the conduct.  But I am   not   prepared   to   accept   that   such   conduct   can   be   appropriately  called

‘tomfoolery’.  To my mind, that unduly minimises the culpability of your actions.  It was, at the least, rank stupidity without so much as a glimmer of intelligent forethought as to the possible consequences of your actions.  The obvious risks of blocking any road by night were exacerbated by the facts that:

(a)       The gates were not designed to be placed within traffic flows and had no reflective protection.

(b)Being of the dimensions and weight I have previously described, they represented  a  very  significant  obstacle  and  potential  danger  to

motorists.

12     R v Taueki [2005] 3 NZLR 372 (CA); R v Clifford [2012] 1 NZLR 23 (CA).

13     See R v Leuta [2002] 1 NZLR 215 (CA).

(c)      The weather at the time was particularly adverse, further increasing the chances that an approaching motorist would not identify the gates before impact.

(d)      Although there was some street lighting in the area the statement of

facts describes it as a “very dark” night.

[27]     The significant risk of collision with the gates is demonstrated by the facts as they unfolded – a middle-aged woman driving a road-worthy and warranted car with no suggestion of excess speed was unable to avoid them.  The possible consequences of such an impact should have been obvious – the barriers could have been thrown up and through the windscreen of any car that hit them.  They could, on impact, have formed projectiles which killed or injured a motorist approaching from the opposite direction, or indeed following.  Any pedestrian in the area could have been similarly endangered.  And an even greater threat was obvious to any motorcyclist given the inevitability that if he or she had struck the barriers they would have either been injured  or killed  at  the point  of impact  or would have been  thrown  from  their machine, at which point their survival became a matter of chance depending on the presence of other motor vehicles or roadside obstacles.  All of that should have been obvious.

[28]     So  I  cannot  accept  this  as  simply  some  youthful  prank  where  the  only reasonably foreseeable  consequences  were traffic disruption.    To  the contrary,  I regard the offending as serious.  A conviction and discharge, coupled with a three strikes warning as urged on me by Ms Pascoe, would not, in my view, meet the level of denunciation and deterrence that the relevant purposes of sentencing require.

[29]     I turn then to consider the comparable cases.

[30]     The Crown has referred me to R v Elliot & Chad where a sentence of nine months home detention was imposed for a dangerous driving manslaughter.14   In that case the two co-accused participated in a car race down a deserted road.  During the race one of their friends who was watching from the nominated finish line walked

across the road and he was struck and killed.   The driver was travelling at approximately 106 km/h when he tried to brake.  Rodney Hansen J, found that the drivers could not have reasonably foreseen that the victim would expose himself to the risk of being hit by walking across the road, contrary to the agreed arrangements between the boys.  The Judge adopted a starting point of three years imprisonment for the two offenders and then gave a one third discount for youth (they were 17 years of age at the time), remorse and regret, to reflect the loss of their friend and their otherwise good character.  An additional 25 per cent discount was given for an early  guilty plea  leaving  a  sentence  of  18  months  imprisonment.   As  such  the defendants were eligible for home detention which the Judge set at nine months.

[31]     As with this case, the defendants’ actions carried a high degree of inherent risk.  Likewise third party actions – in Elliott the deceased’s decision to walk on to the road contrary to agreed arrangements, in this case the acknowledged carelessness of Mr Hart – contributed to the ultimate outcome.  I agree with the Crown that this case represents the most analogous on the cases on the facts.

[32]     In R v King a bouncer removed a patron from a night club.  Although not intending to cause injury, he dropped the patron on the footpath causing a head injury that ultimately resulted in death.  A starting point of two years imprisonment was adopted by Kos J. An end sentence of 12 months home detention was given.15

[33]     In R v Hetaraka Mr Hetaraka punched the victim once, in response to racial slurs and aggressive behaviour towards a woman, causing the victim to fall in an odd way and to hit his head.  Ellis J described the harm that resulted as being far from obvious to Mr Hetaraka. A starting point of two years imprisonment was adopted by

her Honour. A final sentence of 11 months home detention was imposed.16

[34]     In R v McWhannell a young woman fell to her death as a consequence of Mr McWhannell’s failure to properly tie off a bridge rope swing.17     Justice Ronald Young did not set a starting point of imprisonment.  He considered an appropriate

sentence in that case to be 400 hours community service and $10,000 reparation.

15     R v King [2012] NZHC 3072

16     R v Hetaraka [2015] NZHC 2015.

17     R v McWhannel HC Palmerston North CRI-2009-054-1094, 29 July 2010.

[35]     In R v Vaughn Mr Vaughn was found guilty of manslaughter for failing to maintain an elevator lift shaft adequately, leading to an electricians’ death in the lift shaft due to a collapse.  Robertson J concluded that a custodial sentence of “less than two years” was appropriate.18     The ultimate sentence was one of 18 months imprisonment suspended for two years and together with community work.

[36]     Although inevitably each of these cases have their points of difference they confirm me in my belief that a starting point of imprisonment is necessary to reflect the seriousness of the present offending.  I consider such a starting point to be in the order of two years six months imprisonment. As I have said, this is not just a case of a silly prank gone wrong nor, unlike McWhannel and Vaughn is it simply a case of negligence or carelessness.  Your actions were deliberate and there was almost an inevitability that an accident would occur.

Personal circumstances and guilty plea discount

[37]     I then come to consider your personal circumstances and any discounts that are available.   On the information currently available to me I am not prepared to make any further discount for personal circumstances apart from your youth.  None of  you  have  clean  criminal  records,  and  JC  your  criminal  record  presents  a particularly worrying pattern for a  young man.    I am  concerned  that  you  have offended further since this incident.   By the same token, however, none of your criminal records would warrant an uplift in the sentence I consider appropriate.

[38]     There are some indications of remorse, contemporaneously from Mr Gavin in text exchanges with a friend and in the letter Mr Hawkins has written to the Court. However, I balance that against the failure of any of the defendants to come forward immediately after Ms Fairweather’s death.  You say there was group pressure not to do so.  No doubt there was, but your actions lead me to the inevitable conclusion that such remorse as you felt was, at least at the time, overwhelmed by your own self- interest.

[39]     However, participation in a Restorative Justice Conference as two of the defendants have suggested may represent more tangible evidence of remorse and I encourage all of you to make that offer through your lawyers.  Whether these steps have been taken is something that can be considered at sentencing, and I would consider adjourning sentencing to enable that process to take place.19

[40]     On   current   information,   however,   the   maximum   available   discounts, excluding  for  a  guilty  plea,  appear  to  me  to  approximate  10  per  cent  being principally on account of your youth.  Some additional discount may be available at sentencing to reflect the final assessment made by the Judge of the remorse of each individual defendant.

[41]     In addition if you plead guilty following this sentence indication you will be entitled to a discount on that account.20  All counsel are in agreement that you should receive the maximum discount available of 25 per cent to reflect the fact that your plea can still be categorised as early, having regard to other applications before the Court which were necessarily resolved in advance.

[42]     In the result I arrive at a sentence of 20 months imprisonment.

[43]     However, where-as here the end sentence reached is one of a short-term of imprisonment, I must decide whether to commute that sentence to one of home detention coupled with any other sentences which may be imposed contemporaneously.21

[44]     As the Court of Appeal has said:22

That does not mean that a short-term period of imprisonment must always be commuted to a sentence of home detention.  That equally would be an error of law.   What it does mean is that the judge must make a considered and principled choice between the two forms of sentence recognising that both serve the principles of denunciation and deterrence, and identifying which of them better qualifies as the least restrictive sentence to impose taking into account all the purposes of sentencing.

19     Sentencing Act 2002, s 25.

20     R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

21     Sentencing Act 2002, s 15A(1)(b).

22     Fairbrother v R [2013] NZCA 340 at [30].

Home detention

[45]     When considering the imposition of a period of imprisonment for a particular offence, the Court must have regard to the desirability of keeping an offender in the community so far as that is practicable and consonant with the community's safety.23

Consistent with this principle the Court must impose the least restrictive outcome that is appropriate in the circumstances according to the hierarchy of sentences set out in the Act.24

[46]     I further note that the Court of Appeal has stated that when sentencing young offenders the Court must give emphasis to the principles of rehabilitation and reintegration into society.25     It is in society’s interests that such occur and imprisonment, with all its attendant negative influences, is not conducive to that end.26

[47]     Indeed the Court  cannot impose a sentence of imprisonment unless it is satisfied:27

(a)      that the sentence is being imposed for a statutory purpose or purposes, that is: to hold the offender accountable; or to induce in him or her a sense of responsibility; or to serve the interests of any victim; or to denounce the offending; or to deter; or to protect the community;

(b)that those purposes cannot be achieved by a sentence other than imprisonment; and

(c)      that  no  other  sentence  would  be  consistent  with  the  statutory principles as applied to the particular case.

[48]     I  consider  that  home  detention  is  an  appropriate  outcome  in  this  case, provided  that  the  pre-sentence  reports  confirm  to  me  that  you  are  all  suitable

23     Sentencing Act 2002, s 16(1).

24     Section 8(g).

25     R v K (2003) 20 CRNZ 62 (CA) at [22].

26     Ibid.

27     Sentencing Act 2002 s 16(1).

candidates.  It is plainly important for the purposes of rehabilitation and reintegration that you continue to be involved in employment and training and receive the support and guidance of your families.  JC, I have noted that you are enrolled in the Taratahi Agricultural Training Course, Mr Gavin you have full time employment on a farm and Mr Hawkins you hope to regain employment with your local engineering firm. Home detention coupled with community work will also enable you to continue to be involved in your communities and to provide some tangible compensation to those communities for the consequences of your actions.

[49]     I emphasised at the outset that sentencing for manslaughter is never easy and the reasons for that.  I hope that each of you understand that in indicating a sentence of home detention and community work I am significantly influenced by your youth and my desire to see you rehabilitate yourselves.   In my view such sentences best maximise the chances of your becoming productive and useful members of society, while  holding  you  properly  accountable  for  what  was  grossly  irresponsible behaviour.

[50]     I want to make it clear to you that home detention is not a soft option.28   It is consistently recognised by the Courts as providing a real alternative to imprisonment and as recognising the requirement for denunciation and deterrence where that is appropriate. The restrictions on your freedom will be real.

Final Sentence

[51]     The final sentence that I arrive at is, against that background, one of nine months home detention and 100 hours of community work, to be served concurrently.

[52]     This sentence is merely an indication.   I cannot impose home detention or community work without the necessary reports.  It may be that further information prior to sentencing would make other combinations of community based sentences more appropriate, including community detention, and I do not rule that out.  The Crown acknowledges that element of continuing flexibility in its own submissions.

[53]     Crucially,  however,  the  sentence  indicated  today  will  be  the  maximum sentence to be imposed, should you enter a guilty plea and I am the presiding judge.

Three strikes warning

[54]     In the event of guilty pleas, Mr Gavin and Mr Hawkins will be subject to the three strikes law.  JC is not, because he was only 16 at the time of the offending.29

Your counsel will explain to you the consequences of the warnings that would flow from that in the event that you enter guilty pleas.

[55]     That is the conclusion of my sentencing indication.  Stand down.

Muir J