R v Mears HC Rotorua CRI-2010-069-2211

[2011] NZHC 2

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-069-2211

THE QUEEN

v

ANDREW NEVILLE DAVID MEARS

Appearances: A J Gordon and S T Simmers for the Crown

R Laybourn for the Prisoner

Judgment:      2 February 2011

SENTENCING NOTES OF PRIESTLEY J

Counsel:

A J Gordon, P O Box 740, Rotorua 3040. Fax [phone]

Email: [email protected]

R Laybourn, P O Box 936, Waikato Mail Centre, Hamilton 3240. Fax: [phone]

Email: [email protected]

R V MEARS HC ROT CRI-2010-069-2211 [2 February 2011]

[1]      Andrew Mears, so that you know at the start of my sentencing remarks what lies ahead, I tell you now that I will impose on you a sentence of imprisonment. Home detention in my judgment, despite the factors which weigh in your favour, would not be the right sentence.

[2]      You appear for sentence today on a charge of manslaughter.  That carries a maximum of life imprisonment.  Manslaughter is an unlawful homicide in situations where there is no murderous intent.

[3]      You pleaded guilty to manslaughter in the Taupo District Court in November. That  guilty plea  was  a  genuine  and  properly motivated  decision  by  which  you acknowledge full personal responsibility for the death of your victim Rosemary Ives.

[4]      The homicide, as we have heard, occurred on the Friday of Labour Weekend

2010  somewhere  around 10  pm.   Your  victim  was  a  gifted  school  teacher  and university graduate, aged 25.  She and her partner had set up their tent in a camp site approximately three or four kilometres inside the Kaimanawa Forest Park, accessed from the Turangi/Waiouru Road, 15 kms south of Turangi.  She and her partner were brushing their teeth before retiring for the night.   They were both wearing head torches.

[5]      You for your part had entered the state park a short time previously.   You were accompanied by three friends and intended to spend the weekend deer hunting. You were camped at another site further into the park.  Your group was told by other campers that two deer had been spotted shortly beforehand on the access road.  You and your three friends decided to investigate.  You and one other were seated in the back or tray of a utility vehicle.  Your companion was holding a hand-held spotlight. You had your .243 calibre Remington rifle. After a circuit, when returning along the gravel road to the camp site, the vehicle passed under a steep 7.5 metre embankment populated with trees and other vegetation.  The dedicated and flat camp site where the  victim  intended  to  spend  the  night,  was  behind  trees  at  the  top  of  the embankment.  You saw two lights through the bush at the top of the embankment which were in fact the head torches of the victim and her friend.  You mistook these for the eyes of a deer. You aimed your rifle and fired.  The distance between you and

your victim, as best as it can be calculated on an uphill trajectory, was between 15 and 26 metres.  That is close range for a rifle.  The bullet hit Ms Ives in the mouth and caused fatal brain injuries.  She died at the scene.

[6]      Deaths in hunting situations are not unknown in New Zealand.   They are tragic accidents and almost invariably result from carelessness or inadequate target identification.

[7]      Neither counsel nor I have been able to identify previous hunting accidents in this country which have led to a manslaughter charge being laid.  In this instance, I consider the charge has been properly laid because the homicide was the result of various unlawful acts.  Your conduct that night, Mr Mears, was a major departure from the standards of care expected from a user of a lethal weapon in a forest park dedicated to public use.

[8]      You held a licence for the rifle you fired that night.  You also had a valid hunting permit (as did your friends) for the Kaimanawa Forest Park which had been issued to you by the Department of Conservation.   One of the conditions of that permit prohibited hunting during the hours of darkness.   You thus breached your permit.  The condition is imposed for a valid reason.  It is common knowledge that the extensive sweep of the Kaimanawa Ranges is used by scores of people at any one time for recreational purposes: tramping, walking, trout fishing, hunting, and climbing.   Hunting with live ammunition at night in such an environment is hazardous.  Particularly is this the case in a holiday weekend where inevitably the number of park users will increase, you and your friends being amongst them.

[9]      Quite apart from breaching your permit, some of the basic shooting rules were ignored.  You were on the back of a vehicle which would have given you little feel for the terrain; you had no familiarity with what was up the bank; target identification at night is notoriously unreliable; your assumption that you were looking at a deer’s eyes was wrong; you had absolutely no idea of what lay on the far side of the lights and were thus unable to assess, in any responsible way, the beaten zone of the bullet had you missed the target. These factors, which are all aggravating

features  of  the  homicide  to  which  I  shall  later  refer,  make  manslaughter  an appropriate charge.

Victim impact statements

[10]     Victim impact statements have been filed by Ms Ives’s partner, her mother and father, her brother, her step-father, her grandmother, and an uncle.  I have read them all.   Four were read out today in Court and I again thank the four family members for what was a difficult task.  I do not need to summarise them.  A vibrant, caring, much loved young woman with huge potential was killed as a result of your stupidity.  The void left in their lives is huge.  There are emotional scars.  There is anger and frustration which flow from the necessary police procedures which are inevitable when a homicide takes place, particularly in a remote place.  You are well aware of the family’s grief, Mr Mears, and no useful purpose is served by me in expanding on that.  For sentencing purposes the victim’s plight and her family’s feed into the s 7 purposes of holding you accountable for the harm done to the victim and denunciation.

Reparation $10,000

[11]     You have made an offer of amends under s 10 of the Act of $10,000.  The joint position of the family is that with some reluctance they will accept that and will ultimately donate the sum to charity.   That sum, as I understand counsel’s submissions, is to be paid to your victim’s partner Mr Adam Hyndman.

Personal circumstances and presentence report

[12]     The tragedy that night has had an impact not only on the victim’s family but also on you and your family.  You are 26.  You are married with a young child.  Your family is totally supportive of you.  Like the victim, you too have been attracted by outdoor activities.  You have a long involvement with the scouts and serve as a surf lifeguard.   You have no previous convictions.   You hold down a good job as an upholsterer.  Your employer speaks highly of you.  Twenty-three character references

have been submitted which contain a common theme of your kind nature, your dedicated parenting, and your hard work.   You are regarded as a reliable support person.   You have sought counselling assistance.   You have throughout been distressed, genuinely remorseful I accept, and quite clearly emotionally scarred.  The presentence report prepared on you recommends imprisonment.

[13]     As part of the remorse which you have expressed you have appeared on a television current affairs programme in which you made a genuine expression of contrition and regret in the hope that somehow, your stupidity might serve as a lesson and warning to other hunters.

Purposes and principles

[14]     I must craft a sentence for you which reflects the policy of ss 7 and 8 of the Sentencing Act.   When manslaughter sentences are imposed, there are inevitably emotional reactions which follow.  You are alive.  Your victim is dead.  Nothing you or I can say or do will bring her back or fill the void which her death has created for her  family  and  friends.    My  sentence  must  hold  you  accountable;  provide,  if possible, some degree of reparation; provide for your victim’s interests; denounce and deter.  It is fashionable in some quarters at the moment to read down sentences as a deterrent.  But in a high profile case such as this, where the homicide was the result of sheer carelessness in a hunting situation and the stupid use of a firearm, I consider deterrence, although not the only factor, a potent purpose.

[15]     But I must additionally assist with your rehabilitation.  I must not impose a prison sentence on you which is too severe.  I must also impose the least restrictive outcome and take into account the consequences of your prison sentence on your wife, your family, and your future life.  I must balance all those factors, as well as aggravating and mitigating factors.  The sentence I reach is a discretionary exercise which must accord with the law.  The reaction of your supporters and the victim’s supporters, although understandable, will merely reflect the opposite poles of the sentencing field.

Aggravating and mitigating features.

[16]     There are no aggravating features which relate to you.  There are aggravating features  relating  to  your  offending  which  have  been  correctly identified  by the Crown.   These are a departure from the standard of care which a hunter with a firearm should exercise, - shooting at night with a spotlight in unfamiliar terrain off the  back  of  a  vehicle;  failure  to  identify  your  target;  importantly  breaching  a condition of your hunting permit; the particular locality where you were hunting, - although  you  might  not  have  known  that  a  camp  site  lay  at  the  top  of  the embankment  you  nonetheless  knew,  only because  you  were  using  one,  that  the Kaimanawa Park has a number of camp sites and was accessible to the public; you were on a road, not in deep bush; you failed adequately to identify your target; and you did not consider your firing zone.

[17]     I note Mr Laybourn’s submission that some of these aggravating features are part and parcel of the manslaughter charge.  That is correct, but his observation does not justify ignoring aggravating features.    Rather they are to  be bundled  up  in reaching the correct start point.

Mitigating factors

[18]     You are entitled to credit for a number of mitigating factors.   In your case they are powerful  and  will  reduce significantly the sentence  I would  otherwise impose.  First is the fact that you have no previous convictions.  You have hitherto led a responsible and productive life.  The presentence report rightly concludes that you have a low risk of re-offending.

[19]     I am satisfied, and indeed Crown counsel accept, your remorse is genuine and palpable.  This is a situation where you have acknowledged your own stupidity; you have acknowledged the harm you have done to the victim and her family; you are remorseful for your actions not for your predicament.  You have expressed contrition and remorse on national television.  I shall give you full credit for your remorse.

[20]     Thirdly you have pleaded guilty at the earliest possible opportunity and to a serious  charge.   You  co-operated  with  the police at  the outset.   Again  you  are entitled, as the law provides, to a generous credit for that.

[21]     Finally, you have offered the sum of $10,000 by way of amends.  This must be treated with some caution because it is money you are going to have to borrow. There is ample authority for the proposition that people should not be able to “buy” more lenient sentences.  Nonetheless the offer has been made and I am satisfied has been made for genuine reasons.  Section 10 obliges courts to take offers for amends into account.

Counsel’s submissions

[22]     The Crown acknowledges the mitigating factors to which I have referred.  Ms Gordon referred me to the recent Supreme Court judgment of R v Hessell.[1]    The Crown submits an appropriate start point would be between three and five years. The Crown submits that home detention would not be an appropriate outcome.

[1] R v Hessell [2010] NZSC 135.

[23]     Mr Laybourn, who has done a competent job for you, submits that I should be looking at a start point between two and three years imprisonment, and that with mitigating factors, I should arrive at a short sentence of two years or less and impose home detention.

The sentence

[24]     I now move to the sentencing exercise.

[25]     There are no comparable cases.   It is of some relevance, however, that the alternative charge the Crown originally laid of causing death by careless use of a firearm under the Arms Act carries a maximum of three years imprisonment.

[26]     A recent and helpful authority, although the facts are different, is the sentence imposed by Miller J in R v Goldstone.[2]That case involved a man who accidentally shot dead his partner who was taking a photograph of him whilst he was pointing a sawn off shotgun at the camera with his hand on the trigger.   Miller J draws a distinction,   with   which   I   agree,   between   intentional   uses   of   firearms   and unintentional uses of firearms.   He adopted a five year start point.   You had no

[2] R v Goldstone HC Auckland CRI-2009-0433-10031, 28 May 2010.

intention here Mr Mears of shooting your victim.  You thought you were shooting a deer.  Nonetheless you intentionally pulled the trigger and were aiming at a target which you hoped to kill.  Your actions, as I have stated when identifying aggravating features, were reckless.

[27]     Looking at this homicide in terms of a hunting accident, I regard it as serious. This was not a mistaken target in dense bush.  You were not stalking an animal.  You were in the back of a utility on a public road, at night, in clear breach of your hunting permit. You failed to exercise the judgment and common sense of hunters who are in control of a lethal weapon designed to kill.

[28]     I will ask you to stand up at this point.

[29]     In all those circumstances I consider that an appropriate start point, reflecting your culpability, is one of four and a half years.   In fixing that start point I am confining it to the particular circumstances of your case and have no intention of setting any benchmark for future hunting homicides.   I consider a band of four to five years is right for a homicide of this type.

[30]     From that start point I intend to apply a mitigating credit of two years or approximately 44%.  This is generous.  I consider that, in terms of R v Hessell you are entitled to the maximum reduction for an early guilty plea of 25%.  The extra percentage I add to reflect your genuine remorse, your offer of amends, and your exemplary life to date.  Were my start point to be too high by six months I would have reduced somewhat these credits.

[31]     So, Mr Mears, on the charge of manslaughter I sentence you to 2½ years imprisonment.  I consider this is a just exercise of my sentencing discretion.

[32]     I also  impose a reparation  sentence of $10,000  to  be paid  to  Mr Adam

Hyndman within 30 days.

[33]     And finally I order destruction of the Remington firearm. [34]           Stand down.

.......................................…

Priestley J