R v Lucas

[2017] NZHC 651

ORDER PROHIBITING PUBLICATION OF THIS JUDGMENT UNTIL FINAL DISPOSITION OF TRIAL OF MR TE TOMO.  PUBLICATION IN

LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2014-076-000781 [2017] NZHC 651

THE QUEEN

v

OLIVIA TOBY FRANCES LUCAS AND

VERDUN ASHLEY PERRY

Hearing:	5 April 2017
Appearances:	A McRae for the Crown R Glover & D Brown for the Defendant Lucas S Bailey for the Defendant Perry
Date:	5 April 2017

SENTENCING REMARKS OF NATION J

[1]      Mr Perry, Miss Lucas, I must now sentence you following your convictions for a manslaughter and assault with intent to rob.

[2]      The person who died as a result of your offending was Arran Gairns.  At the time of his death, he was 34 years old.  He was loved by his partner, his parents, his immediate family and his friends.  I have carefully read and heard the victim impact reports.

[3]      I acknowledge how much of an ordeal the long wait for the trial and the trial itself would have been for all of you.  Your victim impact reports eloquently express

your profound sense of loss, the ongoing sense of sadness which will remain with

R v LUCAS & PERRY [2017] NZHC 651 [5 April 2017]

you as you are reminded again and again of what you are not able to share with him and also your understandable anger at what these people did which, as Arran’s father said, “sadly cost AJ his life”.

[4]      On the night of Friday 30 May 2014, Mr Gairns travelled to Christchurch and obtained a modest quantity of methamphetamine, mainly for his own use.  When he returned to Ashburton, he needed to on-sell some of what he had acquired to help pay for it.  One of the people he contacted over this was you Miss Lucas.   In the early hours of the morning, around 1.00 am, you arranged to pick him up.  You took him to his father’s workshop area. At night it was a secluded place where Mr Gairns used to go when using methamphetamine.   It was near the main road through Ashburton, the Millstream and the flood overflow area where he ultimately met his death.

[5]     At that spot, you Miss Lucas and Mr Gairns shared some of the methamphetamine that he had brought back.  You talked about how you could sell more of that methamphetamine, splitting some of it with a cutting substance to make it go further.  While with him, Miss Lucas, you were sending texts to others to see if they might be interested in buying some meth.  You also texted Stacey Curtis and indicated you knew Mr Gairns was very much affected by the P he had smoked – in a text, you described him as “frizzled”.  Miss Lucas, you knew that, when Mr Gairns was like this, he was intensely fearful and suspicious of others, paranoid was the way you described him.

[6]      Miss Lucas, you agreed with Mr Gairns that you would go and collect some point bags that you could both use in on-selling some of the meth. You then dropped him back at his home and went to the address of your friend, Stacey Curtis.  Also at that address were you, Mr Perry, and Miss Lucas’ former partner and the father of your children Mr Te Tomo.  On the way back to Stacey Curtis’ place, Miss Lucas, you sent her a text saying you were going to “rip off” Mr Gairns.  You said he had been “talkin to you like you were a crack whore LOL”.  You said you had an easy way to set him up.  That set in train the events which ultimately led to Mr Gairns’ death.

[7]      At Stacey Curtis’ home, it was arranged that Mr Te Tomo, Mr Perry and, at some point, Mr Marshall would all go to the workshop area and wait for Mr Gairns to be brought back there with you, Miss Lucas, with the idea that he would be “dealt to” in some way as retribution for supposedly talking to you like you were a crack whore but also with the intent of stealing his methamphetamine.

[8]      One of the people who helped with this plan was Mr Te Tomo.  Miss Lucas, you knew of Mr Te Tomo’s propensity for violence.  You knew also he was affected by his use of methamphetamine at the time and he had not slept for a week.

[9]      After you arrived back at Stacey Curtis’ place, you met Mr Te Tomo.  You told him what Mr Gairns had supposedly said to you.  Mr Te Tomo said he was going to “smash him over”.  You told the Police that you said to Mr Te Tomo to go in Mr Perry’s truck and, with Mr Perry, meet you and Mr Gairns back at the workshop. You said you told Mr Te Tomo to fill Mr Perry in, to give Mr Gairns a scare, take his stuff and come back to Ms Curtis’ home.  Before they left the home, Ms Curtis told you that Mr Te Tomo had grabbed a knife, although it was not clear that he actually took a knife with him.

[10]     At some stage, Mr Te Tomo and Mr Perry were joined by Mr Marshall.  Mr

Marshall was an older man with a criminal record for violent offending.

[11]     It  is  not  clear  to  me,  Miss  Lucas,  that  you  knew  of  Mr  Marshall’s involvement when you collected Mr Gairns and took him back to the workshop area, and I proceed on the basis that you did not know that, but I do not regard that as significant in sentencing you.   You had planned that Mr Gairns would be robbed. You knew that, with those who were going to be involved, including Mr Perry and Mr Te Tomo, there was going to be violence or, at the very least, the threat of violence, towards Mr Gairns.    You ultimately acknowledged this at the commencement of the trial with your plea of guilty to the charge of assault with intent to rob.

[12]     Mr Perry, you have told the probation officer who prepared the report and have  said  through  counsel  that,  when  you  accompanied  the  others  back  to  the

workshop, you did not know the intention was to rob or harm the victim and you believed they were going to talk to the victim about mistreating Miss Lucas.

[13]     Whatever you thought, Mr Perry, when you set off with Mr Marshall and Mr Te Tomo, you told the Police in one of your interviews that, when you got to the workshop area and knew who it was that you were going to meet up with there, you knew the situation had gone from one where you were going to give a guy a talking to and possibly a bit of a hurry up, to try and rob him.  Your actions at the workshop area, in helping to search for Mr Gairns when he initially tried to hide, your actions when Mr Gairns was seriously assaulted by Mr Marshall and threatened by Mr Te Tomo on the bank of Millstream, and afterwards your actions when he ran away, all indicated that you were there to help others with the robbery of Mr Gairns.  You told the probation officer that you accepted your responsibility for your part in the events in driving others to the scene and searching for the victim afterwards.  You also said how you had ruined your life by trying to assist a friend who was selling methamphetamine.  I am satisfied that you intended to assist Miss Lucas in the way she had arranged for all of you to rob Mr Gairns of methamphetamine.  Given the jury’s verdict, I must sentence you on that basis.

[14]     Miss Lucas, your counsel has sought to mitigate the seriousness of your offending by saying it was all brought about by the way Mr Gairns had suggested to you that you should have sex with him in return for drugs.   I am sceptical as to whether this happened and am more sceptical as to whether you were genuinely angry with him as a result of any conversation you may have had with him when you were first with him at the workshop.

[15]     What Mr Gairns said and how you reacted would have undoubtedly been affected by the way both of you had used methamphetamine.  However Mr Gairns may have talked with you over the time you were with him, it was not enough to cause you to immediately leave him.  It did not stop you arranging with him at the time to go back to your home to collect bags so you could obtain more meth from him.  He may have said things which you found slightly offensive but you also told the Police Officer that you had a good mutual friendship with him at the time and

there was no suggestion that he was going to force you to do anything you did not want to do.

[16]     Mr Perry, you drove Mr Marshall and Mr Te Tomo back to the workshop area.  At around 2.30 am, you Miss Lucas picked up Mr Gairns and drove him back to the workshop on the pretext you were going to smoke methamphetamine and do a deal with him.  When you arrived there, Miss Lucas, you texted Mr Te Tomo, telling him where you were and that you were about to go into the workshop and to wait until you were in there.   You told Mr Te Tomo that Mr Gairns was paranoid and acting weird.

[17]     Mr Gairns got out of your vehicle because he thought someone was there. Miss Lucas, you realised that he had seen someone and you told the Police that you thought it must be the boys.  You knew Mr Gairns was easily scared.  As you drove out, you heard Mr Gairns yelling, sounding freaked out.

[18]     From that point, we know, primarily from what you told the Police Mr Perry, that Mr Gairns ran off and was hiding in Millsteam near the workshop area.  The three of you were trying to find him.   I note Mr Perry that, had you gone to the workshop area simply to make sure that nothing bad happened to anyone and simply to tell Mr Gairns that he should treat Miss Lucas with respect, that would have been the ideal time to tell the others to leave the scene and have nothing more to do with him.  Instead, all three of you searched hard for him.  You drove your vehicle from the workshop area onto the other side of Millstream.  It was a freezing cold night. When all three of you were on the bank above the stream, Mr Gairns emerged from where he was hiding.

[19]     All three of you were close together, surrounding Mr Gairns on the top of the bank as Mr Marshall demanded meth from him and made him search his pockets. At one point, Mr Marshall had a machete in his hand.  Mr Marshall demanded his drugs before punching Mr Gairns on the chin with a closed fist, causing him to fall back into the creek.  Mr Gairns came back to the embankment where Mr Te Tomo made threats that he would put him in the back of your truck Mr Perry.  Mr Gairns then managed  to  escape  and  ran  off  across  parking  areas  outside  various  buildings

towards the flood protection basin.   Mr Perry, you told the Police Mr Gairns was running for his life.   You later told another witness that the last moments in Mr Gairns’ life would have been sheer terror.

[20]     Mr Perry, you attempted to follow him in your truck, driving off without closing the door of your vehicle.   You saw Mr Gairns running towards the flood protection area.  You and Mr Te Tomo continued to search for him.  You told Mr Marshall to stay by your vehicle.   Mr Perry, you walked into the flood protection area, found that it had a considerable amount of water in there.  Despite how cold it must have been, you were determined enough to try and find Mr Gairns that you walked a good distance into it and must have come quite close to where Mr Gairns was hiding in the swampy grassy area at the bottom of a bank.

[21]     Mr Te Tomo was also looking for him and must have been at the top of the bank within approximately 10 or 15 metres from where Mr Gairns was hiding. Given the fact that three men had confronted Mr Gairns near the creek and he had been assaulted and was extremely fearful of the whole situation, he must have been intensely afraid of what might happen next.

[22]     None of you discovered Mr Gairns.  Eventually, some 40 minutes after you had first gone to the workshop, you gave up looking for him. You returned to Stacey Curtis’ home.   It was a very cold night.   Mr Gairns’ body was discovered on the Sunday afternoon.  He was found lying on his back, with his arms crossed above his chest, as if he had been endeavouring to keep himself warm.  He had drowned.

[23]     In summary, those are the tragic circumstances that led to the death of Mr

Gairns and you now having to be sentenced on these two serious charges.

[24]     In  arriving  at  the  appropriate  sentence,  I  must  first  of  all  assess  the appropriate starting point for the actual offending.

[25]     The Sentencing Act 2002 requires me to have regard to the purposes of sentencing, as set out in the Act.  Those purposes require me to hold you accountable for the harm you have done, to promote in both of you a sense of responsibility and

acknowledgement for that harm, to denounce your conduct and to deter you or others from committing the same or a similar offence.   I must also have regard to the purpose of assisting in your rehabilitation and reintegration into the community once your sentences are complete.

[26]     I have regard to relevant principles of sentencing, as set out in the Sentencing Act,  particularly  the  gravity  of  the  offending  in  this  case  and  the  degree  of culpability for each of you.   I must have particular regard to, and ensure there is, some consistency with the sentence the Court has already imposed on Mr Marshall.

[27]     I  take  into  account  the  following  aggravating  factors  in  assessing  the seriousness of offending.

[28]    Both the manslaughter and assault with intent to rob involved actual or threatened violence.   The actions of both of you have resulted in serious loss or harm, namely the death of Mr Gairns.   I accept the Crown’s submission that Mr Gairns was a vulnerable victim, partly by virtue of his being out-numbered by three to one, by his being lured to an isolated location by cover of night,  under the pretence  of  an  agreed  drugs  transaction  but  also  through  his  being  under  the influence of methamphetamine which was likely to cause him to be extremely afraid. I do acknowledge the submission by Ms Bailey that vulnerability is not necessarily or normally assessed with regard to the circumstances in which the offending occurred but, as she acknowledged, if they are not brought into account as relating to vulnerability of  the  victim,  they would  still  be  aggravating  factors,  aggravating circumstances  relating  to  the  offending.     I  accept  that  this  offending  was premeditated, planned back at Stacey Curtis’ house with you, Miss Lucas, at the forefront of what was going to happen.

[29]     The Crown submits there are no mitigating circumstances relating to the offending.

[30]     Ms Bailey does not submit there are mitigating circumstances as to the actual offending for you Mr Perry.  Mr Glover acknowledges for Miss Lucas that you were the instigator of the offending but says that, at the time the offence was committed

by others involved, you were back at Stacey Curtis’ home, at the furthest remove from what was happening.

[31]     The Court of Appeal has not attempted to provide any guidelines as to what the sentences should be for manslaughter,  recognising that the circumstances in which the offence may be committed vary enormously.

[32]     In a case, Turi v R, the Court of Appeal talked of the unique sentencing difficulties   with   crimes   of   manslaughter   because   death   is   the   unintended consequence of an unlawful act and because of the infinite variety of circumstances which may constitute unlawfulness and combine to cause death.1   Those comments can appropriately be applied to situations, such as exist here, where, more unusually, the charge of manslaughter is based not on an unlawful act but on the allegation that each of you caused the death of Mr Gairns by causing him, with threats of fear or violence, to run away and/or hide, which caused his death.

[33]     I do note that, because of the way Mr Gairns died as a result of the assault with intent to rob offences, you might also have both been found guilty on the basis that his death had been caused by an unlawful act.

[34]     The Court of Appeal has said that, ultimately, the sentence for manslaughter is dictated by an evaluation of culpability within its particular context.  In assessing the seriousness of the offending, the Court needs to consider if, and the extent to which, the actions of the offender may have been relatively remote and indirect from the victim’s death.  Consistent with that, in the one-punch manslaughter cases, the offending will be regarded as more serious and the starting point will be longer where  the  offender  intended  to  cause  really  serious  harm.    But,  this  is  all  an important circumstance to take into account in this case.

[35]     Neither Mr Perry nor Miss Lucas intended Mr Gairns to die.   Miss Lucas, you had been something of a friend to Mr Gairns, albeit associated with your use and sale of methamphetamine.  There was nothing in Mr Perry’s personality or past to

indicate that, had you been able to think rationally and responsibly about what you

1      Turi v R CA690/2013 [2014] NZCA 254 at 11.

were doing, you would have wanted to be involved in criminal activity that could

lead to Mr Gairns’ death.

[36]     It was, on my assessment of the situation, neither probable nor inevitable that, as a result of Mr Gairns running off to hide, he would drown.   In that sense, Mr Gairns’ death was a more remote and indirect consequence of your actions than, for instance, in those circumstances where death has occurred in what are referred to as one-punch cases, where there has been an assault and, through the victim suffering an unexpected and unintended head injury, the victim dies.

[37]     The Crown acknowledge that, while you intended to rob Mr Gairns of his methamphetamine, to inflict violence upon him and have him fear for his safety, the case is unusual in that it is an allegation of manslaughter without any physical contact between the men involved at the precise time or very close to the time of Mr Gairns death.

[38]     With Mr Marshall, Gendall J settled upon an aggregated starting point for both  offences  of  five  years.2      Mr  Marshall  personally  inflicted  actual  physical violence on Mr Gairns and threatened him with the assault that occurred on the bank above Millstream.  It was those physical assaults that caused Mr Gairns to run off, fearing for his life.

[39]     I have carefully considered the analogy Gendall J drew between the situation here and what have been described as one-punch cases; situations where a person sets out to achieve one unlawful purpose but another more serious consequence follows that was not intended.  I have considered the cases he referred to.3

[40]     As  Gendall  J  said  when  sentencing  Mr  Marshall,  in  this  instance,  a reasonably intricate plan was orchestrated by which Mr Gairns would be lured, under cover of darkness, to a remote location where he would be out-numbered and robbed of drugs.  This plan was put into motion.  During the course of this, Mr Gairns was

physically assaulted and threatened.   He feared for his life.   Shortly before he ran

2      R v Marshall [2015] NZHC 2016.

3      R v Faletolu [2014] NZHC 2218, referring comparably to Ioata v R [2013] NZCA 235 and

Murray v R [2013] NZCA 177; Cooper v R [2014] NZCA 275.

away and ultimately died, he had already fled from his pursuers.  He had run and hid in the cold water of Millstream to avoid you Mr Perry and the others.

[41]     When Mr Gairns emerged from the stream in a show of surrender, the three men who were there, including you, Mr Perry, did not relent.  It was there that he was assaulted and threatened to be put into your truck.  It was those actions which caused him to flee, once more to an area where there is water, which was where he drowned.

[42]     I consider, Mr Perry, you actively participated in what was going on by being there as back up, in taking Mr Marshall and Mr Te Tomo to the scene and in helping search for Mr Gairns, but you were not the principal assailant.  Miss Lucas, you had set up and orchestrated the whole situation where it was likely there would be violence or the threats of violence that would cause Mr Gairns to be deeply afraid, as you knew he would be.

[43]     I distinguish this case from that of R v Innes which Mr Glover referred to me.4  Although Mr Innes had been a party to a planned burglary, he was sentenced on the basis that his involvement had been to lure the occupants away from their home, so that it could be entered by a co-offender.  He was not sentenced on the basis that he knew there was going to be a physical confrontation between the co-offender and the victim in the way that did occur.

[44]     Although there is no guideline sentence, a sentence for manslaughter must recognise that, as a result of the offending, a person has died.

[45]     What I do cannot compensate for a death or be determined by the anger and deep sorrow that those close to Mr Gairns understandably feel as a result of the loss they continue to suffer.

[46]     Miss Lucas, your counsel has suggested an appropriate sentence should be between two years, three months and two years, six months.  The Crown suggested

4      R v Innes [2016] NZHC 1195.

the starting point for your sentence should be between four years and four and a half

years’ imprisonment, with no discount.

[47]     Mr Perry, on the basis your guilt might be assessed as being primarily as a party, the Crown suggest the starting point should also be between four and four and a half years, with no discount for mitigating features relating to you personally.

[48]     Mr Perry, your counsel has suggested a starting point of three and a half to four or four and a half years but say you should be given a significant credit for matters relating to you personally: your previous good character, your remorse, your high level of cooperation with Police, your willingness to give evidence against a co- offender, your willingness to participate in a restorative justice conference.

[49]     The  circumstances  of  the  assault  with  intent  to  rob  charge  and  the manslaughter charge are so closely related that, although the offence of manslaughter is the lead offence, it is appropriate to adopt a starting point for both offences on a combined basis.  I do have some regard to the fact, Miss Lucas, you were not aware of the precise nature and extent of the way Mr Gairns was threatened and assaulted after you left him at the workshop area.  You were not aware of exactly how he had tried to hide initially or how he had run away after the assault that occurred after that.

[50]     The starting point I adopt is four and a half years’ imprisonment, or 54 months’ imprisonment  for  you  Mr  Perry  and  for  you  Miss  Lucas  four  years’ imprisonment.

[51]   I must then consider whether there are any mitigating or aggravating circumstances relating to each of you personally that require me to make an adjustment to that starting point.

[52]     There have been a number of statements in the victim impact statements initially presented to me suggesting that you had shown no remorse through the way you both defended these charges.

[53]     I need to point out that, in New Zealand, everyone charged with a criminal offence is entitled to a fair trial. You cannot be punished more harshly for exercising that right but, because you defended these charges, you are not entitled to probably what would have been a discount of 25 per cent on a starting point sentence if you had pleaded guilty at an early stage.  That discount would have made a significant difference to your sentences.

[54]     You cannot be blamed for the delays that have occurred in this matter coming to trial.  It cannot be said, particularly in your case Mr Perry, that the issues your lawyers raised about whether the evidence in all your interviews with the Police should be allowed as admissible evidence against you at trial, were issues that were pursued unreasonably or irresponsibly.  The issues were so serious and difficult that they ended up being considered by the Supreme Court.  Different judges in different courts had reached different conclusions on those issues.

[55]     Miss Lucas, you ultimately did plead guilty to an assault with intent to rob charge.     Mr  Perry,  you  made  full  admissions  to  the  Police,  detailing  your involvement in all that happened.  Given the legal basis on which a person can be found guilty of manslaughter, you could have pleaded guilty to these charges but I accept you did not do so, probably because, with legal advice, you genuinely thought there might be a defence to the charges, not because you were denying your part in what happened.

[56]     Miss Lucas, you are now aged 29.  As the probation officer has pointed out, you are no stranger to Court proceedings but your offending has been around drink- driving and non-compliance of Court orders. You had no convictions for violence or drug-related offending in your criminal history but it was clear, from the evidence I heard  during  the  trial  and  as  stated  in  the  probation  officer’s  report,  that  your lifestyle, peer-group and use of illicit drugs in recent years was always going to place you at risk of more serious offending.

[57]     You cannot receive any credit for the remorse that is shown through a guilty plea.  Although there was a guilty plea on the assault with intent to rob charge, that guilty plea was entered only on the beginning of the trial and thus did not reduce the

ordeal of the proceedings for all those affected by the death of Mr Gairns or the costs and administrative burden which are inevitably associated with a major trial of the sort that was necessary given your continuing not-guilty plea on the manslaughter charge.

[58]     It seems from the probation officer’s report that you still find it difficult to understand how you could be guilty of a manslaughter.  In that sense, you are still failing to accept responsibility for the consequences of your involvement in orchestrating a robbery of Mr Gairns with his being, at the very least, threatened with violence, violence that you knew would make him afraid, the very consequence that led to his death.

[59]     I observed you during the trial.  While it may not have seemed so to some in the courtroom was the case, I accept that you were ashamed and embarrassed to find yourself in this whole situation.   The probation officer said that you appeared remorseful  for  what  occurred  as  a  result  of  your  actions,  notwithstanding  the difficulty you have in accepting that you are guilty of manslaughter.  The probation officer said that, in the months following Mr Gairns death, you struggled to function at all, not you said because of the possible consequences for yourself but because you knew a family had lost a son and brother.  I note that you were, and still are, prepared to attend a restorative justice meeting.   Understandably, this did not eventuate but it may possibly occur in the future, if those who have suffered such a loss think they would benefit from it.   Both I and the family have now seen and heard the letter which you had read out by Mr Glover.

[60]     I do give you some credit, Miss Lucas, for the way in which ultimately you assisted the Police.   In your initial interview, you provided the Police with useful and, I consider, honest information as to the drug scene in Ashburton but you said nothing about what happened with regard to the planned robbery of Mr Gairns and your part in it and lied about that.  Later, on being confronted with the texts that you had sent and received, you were more honest, naming others and providing information as to the part you had played.  I do not however consider the information you provided was as frank or necessarily as  honest as that given by Mr Perry. Although you are to be called as a witness at the trial of Mr Te Tomo, given he is the

father of your children, it remains to be seen to what extent your evidence will assist the Police.

[61]     To your credit, since being charged with this offending, it appears you have had the benefit of outpatient treatment for your drug use.  Both you and your mother say you have been free of illicit drugs for almost two years.  You are fortunate to have the continuing support of your parents who care for your two children.  Your mother has set out in a letter how you have had a positive involvement in your children’s lives.

[62]     As a result of what happened to Mr Gairns, he is not going to have the opportunity to show that he could distance himself from an involvement with drugs, an involvement which has obviously had the most unfortunate consequences for him and others.  One way you can make up for what has happened is to continue with the efforts you have already made to distance yourself from the drug scene and social associations in Ashburton which contributed so significantly to this offending and its tragic consequences.

[63]     I will give you some credit for the remorse you have expressed, the limits on your freedom which you have been subject to through being on bail, although I know there were breaches of bail, during a lengthy pre-trial period and the steps you have already taken to rehabilitate.  In all the circumstances, that credit must be modest.  I put it at approximately ten per cent so as to reduce your sentence for this offending to three years, seven months’ imprisonment.

[64]     Mr Perry, you are 26 years of age.   You find yourself being sentenced on serious  charges  I  am  sure  would  never  have  happened  but  for  you  becoming involved with the use of illicit drugs, particularly methamphetamine. You left school at  year 10.   Since then  you have maintained regular employment or vocational training through a variety of jobs where you were generally trusted and valued by your employers and those you worked with.   One of those workmates was an apparently thoroughly decent young man who gave evidence at your trial.  He valued his friendship with you until your life changed when you became involved with drugs in Ashburton.  You did not plead guilty to the charges you faced.  Like Miss

Lucas, you find it difficult to understand how you could be guilty of manslaughter. Perhaps because of that, at times during your trial, you appeared not to appreciate the predicament you were in or the ordeal that Mr Gairns’ family and friends were going through in observing what was going on.   I am satisfied however that, when you were about to receive the jury’s verdict, you appreciated just how serious the whole situation was.

[65]     The probation officer has told me that you have experienced significant guilt since the night of this offending and are frequently overwhelmed by feelings of shame.  Although you did not plead guilty, you did demonstrate remorse in tangible ways.  You texted your former friend and workmate, Mr Jack, early on the Saturday morning and arranged to go and talk to him.  You told him that you and some mates had given a person a hiding.  Although you spoke of this as if the victim had got what he deserved, Mr Jack considered that, when you were telling him this, you were in a serious mood and sounded serious about what happened.  Given the way you later talked to the Police, I consider it likely that you were troubled by what had happened and wanted to talk to someone who was not part of the drug scene in Ashburton about what had occurred.

[66]     Of greater significance is what occurred in your interviews with the Police. You were initially interviewed by a detective on Wednesday 4 June 2014.   In that interview, you told the Police how you had been at Stacey Curtis’ place and had been there on Friday and Saturday nights, but said you knew nothing about how Mr Gairns’ body had been found near West Street in Ashburton.  You said you had been asleep at Stacey Curtis’ place from midnight until about 7.30 in the morning.  When the detective told you what Miss Lucas had told them about how she had planned with you and Mr Te Tomo to intimidate Mr Gairns, scare him and steal his methamphetamine, you said it was all a lie.

[67]     After you were told about some of the texts, you said you wanted to speak to a lawyer.   The Police arranged, around the same time, for you to talk to Stacey Curtis.   After you had also spoken to a lawyer, you agreed to carry on with an interview with the Police.   The way in which the Police got you to participate in further interviews led to those arguments as to the admissibility of the evidence

obtained in those interviews. As I said, the issue was so serious, finely balanced and difficult, that it was ultimately decided by the Supreme Court.   This is, as I said, what led to the significant delay in the trial taking place.

[68]     In your further interview, you cooperated fully with the Police, giving what appeared to be a detailed and frank account of all that had happened on the Saturday morning, initially back at Stacey Curtis’ place, but describing all that happened at the workshop and afterwards.  Then, on Friday 6 June 2014, you voluntarily went to the Police Station and agreed to walk through and give a video commentary of all that had happened in the early hours of Saturday 31 May 2014, which was recorded and played at your trial.  You did that in a way which I regard as being completely frank, without any attempt to protect others or to minimise your involvement.  When the walk through was completed, you were interviewed further in a manner where I am satisfied you gave a complete and honest account as to what had happened, as best you could remember it.

[69]     With  the  way  you  cooperated  with  the  Police,  I  accept  you  provided considerable assistance to the Police in helping them work out exactly what had happened and what the events were leading to Mr Gairns’ death.  You also provided the Police with all the evidence they needed to prove these charges against you.  I consider you did all that because you were troubled by your involvement in all that had happened, accepted you were responsible for your actions and wanted to own up to all of it with the Police as a way of somehow removing the guilt and the remorse which you felt in a general sense for what had happened.

[70]     With your now having been found guilty and being sentenced, like Miss Lucas, you know you will be called as a witness to give evidence at the trial of Mr Te Tomo.  Because of the way you have already cooperated with the Police and because of the way you ultimately spoke to the Police in the interviews with them and demonstrated what happened in the walk through, I am satisfied that you being a witness will be of considerable assistance to the Crown in attempting to prove the charges which Mr Te Tomo faces.  As a witness at that trial, you will be no doubt called to give evidence consistent with what you have already said and demonstrated to the Police.  I accept that, with you being subject to a sentence of imprisonment,

giving evidence for the Crown against Mr Te Tomo may be at a personal cost to you in terms of the way you may genuinely fear some sort of retribution from Mr Te Tomo or his associates.

[71]     I consider, consistent with authority, that you are entitled to a significant credit for the way you cooperated with the Police and for the way you are going to assist the Crown now in giving evidence for the Crown in circumstances where, because of your earlier cooperation, it will be difficult to discredit you as a witness. I give you a credit for your previous good character, for your willingness to attend a restorative justice conference.   I also have regard to the way your freedom was restricted during the lengthy period through to the trial and the way you responded to that and dealt with it.  The credit I will give you on account of all the matters which Ms Bailey advanced for you is going to be 20 per cent, that is approximately 11 months.   With you too, that will result in an end sentence of three years, seven months’ imprisonment.

[72]     Mr Perry, you were valued by the employers with whom you were working before your trial.  That employer has gone to the trouble of writing a letter of support for you.   You have the support of a partner who wants to be able to continue a relationship with you.  I received a letter of support from your mother.  Unlike some people who appear in this Court on these sorts of charges, you and Miss Lucas are both fortunate that you have the continuing support of family.  The probation officer said that the key factors that led to your current situation were your lifestyle, your poor choice of associates and the negative impact of drug use on your emotions and rational thinking.  You have told the probation officer that you ceased your use of drugs in 2014.

[73]     You are being sentenced for your first criminal offences.   The probation service assesses you as having a low likelihood of reoffending and being a low risk of harm to others.  It will be important that you make the best use you can of your time in prison so as to ensure that on your release you do not again put yourself in the same circumstances that have been tragic, not just for you but particularly Mr Gairns and all the people who are here, who have suffered and who will continue to suffer because of his death.

[74]     Miss Lucas, Mr Perry, please stand.

[75]     Miss   Lucas,   on   the   charge   of   manslaughter,   you   are   sentenced   to imprisonment for a period of three years, seven months.  On the charge of assault with intent to rob, you are sentenced to imprisonment for two and a half years, with such sentences to be concurrent.

[76]     Mr Perry, on the charge of manslaughter, you are sentenced to imprisonment for a period of three years, seven months.  On the charge of assault with intent to rob, you are sentenced to imprisonment for two and a half years.  Those sentences are to be concurrent.

[77]     You may stand down.