R v Peters
[2024] NZHC 3743
•9 December 2024
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE
CRI-2024-016-1392
[2024] NZHC 3743
THE KING v
KARL ERIC PETERS
Appearances: D V Walker for Crown R Adams for Defendant Sentenced:
9 December 2024
SENTENCING OF CHURCHMAN J
Introduction
[1] Mr Peters, you appear for sentencing today having pleaded guilty to four charges:
(a)one charge of manslaughter;1
(b)one charge of unlawful possession of a firearm;2
(c)one charge of possession of a firearm without a licence;3 and
1 Crimes Act 1961, s 156, 160(2)(b), 171 and 177—maximum penalty of life imprisonment.
2 Arms Act 1983, s 45(1)—maximum penalty of four years’ imprisonment or a $15,000 fine.
3 Section 20(1) and (3)—maximum penalty of one year’s imprisonment or a $15,000 fine.
R v PETERS [2024] NZHC 3743 [9 December 2024]
(d)one charge of possession of a Class C controlled drug, namely cannabis4 for the purpose of supply.
[2] The victim of the manslaughter charge was James Stuart Atkins, father to three children.
The offending
[3]I will now summarise the facts of the offending.
[4] On the evening of 24 August 2024, Mr Atkins and three of his friends decided to go hunting on Tauwhareparae Road in an area that is rural and in which wild pigs and deer were known to forage near the road. The group had pig dogs and carried with them thermal imaging equipment for spotting wild animals.
[5] At around 10.30pm that evening, you and your son set out to go possum hunting along Tauwhareparae Road. You were using thermal imaging equipment to spot possums. That equipment detects heat sources and creates a visible image.
[6] You were armed with a .22 calibre rifle fitted with a thermal scope, as well as a hand-held thermal monocular.
[7] During the night, Mr Atkin’s party came across you and your son and were aware you were hunting from your vehicle on the road.
[8] According to what you said to police, you drove your ute along the road while your son sat in the front passenger seat armed with the .22 calibre rifle. As you drove slowly along the road your son used the thermal scope to pick up heat sources and identify possums. Once your son identified a possum, you checked and confirmed the target using the hand-held monocular. Once you confirmed the target you would advise your son to take the shot. Once the target was shot your son would go and retrieve it.
4 Misuse of Drugs Act 1975, s 6(1)(f)—maximum penalty of eight years’ imprisonment.
[9] After shooting several possums, your son picked up another heat source at the side of the road that was located behind a damaged culvert embedded in silt and debris. Despite the fact that you were aware people were hunting in the area, on this occasion you did not check with the thermal monocular or the scope before giving the okay for your son to take the shot.
[10] Your son then fired the rifle at the heat source. You told him to retrieve the possum, and when he went to do so he returned crying heavily and distressed. This is because he had discovered the heat source that he had shot was a man. That man was Mr Atkins.
[11] You immediately went to check and found Mr Atkins was still alive and bleeding. You placed him in the recovery position and went to seek help at a neighbouring property. Emergency services were notified, however Mt Atkins died a few hours later at Gisborne Hospital. His post mortem determined that he died of a single gunshot wound to his forehead.
[12] Following the events of that night, your address was searched by the Police. In this search Police seized a .270 calibre rifle, a 12-gauge shotgun and a high-powered air rifle as well as numerous rounds of live ammunition, all stored in an unlocked wardrobe in a bedroom at the address.
[13] During the search the Police also found 1,375 grams of well manicured cannabis head carefully packaged into 7 large plastic bags, with an estimated street value of $14,700.
Victim impact statement
[14] I want to acknowledge the victim impact statement delivered earlier today by Mr Atkins’ older sister, Ella Atkins. It is never easy for anyone to read such a statement in public. That statement outlined the devastating consequences of your actions that night, which continue to haunt Mr Atkin’s friends who were with him and his family members, particularly his children who have been deprived of their father, and his parents who face the heartbreaking reality of having outlived one of their children. Mr Atkins was clearly a loved father, brother, son and family member.
Approach to sentencing
[15] I will now explain the approach I will take in sentencing you today. There is no guideline case for the offence of manslaughter, given it can occur in such a wide range of circumstances.5 However, guidance can be obtained from considering decisions in cases with similar circumstances.6
[16] The sentence that I come to must reflect the purposes of sentencing set out in s 7 of the Sentencing Act. The most relevant of those purposes is the need to hold you accountable for the harm done to the victim and the community by the offending, to promote in you a sense of responsibility for that harm, to denounce your conduct, to deter yourself and others from committing similar such offences in the future, and to assist in your rehabilitation and reintegration.
[17] Your sentence must also uphold the principles of sentencing under s 8 of the Sentencing Act. These include taking into account the gravity of your offending, your degree of culpability, the seriousness of your offending compared to other offences, the general desirability of consistency with appropriate sentencing levels, the need to impose the least restrictive outcome appropriate in the circumstances, your particular circumstances and personal background, as well as any restorative justice processes that may have occurred.
[18] In terms of the process by which I will be sentencing you today, I will first establish a starting point for your sentence taking into account the aggravating and mitigating factors of your offending. I then will consider the uplifts for your personal aggravating factors such as prior offending, and then, lastly any discounts for personal mitigating factors such as an early guilty plea and expression of remorse.
5 Everett v R [2019] NZCA 68 at [24].
6 R v Leuta [2002] 1 NZLR 215 (CA) at [59].
Submissions
Crown submissions
[19] To now summarise the Crown’s submissions. The Crown submissions were set out in detail in the written submissions of Mr Walker. He submitted that there were four aggravating factors to your offending. Firstly, you failed to identify a target beyond all doubt, as noted in the New Zealand Police Firearms Safety Code 2022 this can result in consequences that are immediate, tragic and catastrophic, as occurred in this case. You were also hunting in an area where you knew other people were present. Your firearms licence had expired in August 2012 and due to activities involving poaching wildlife, a further application for a firearms licence was declined. You therefore should not have been in possession of firearms at all. Mr Walker has noted the terrible impact your offending has had on the whānau and friends of Mr Atkins, and that was also reinforced in the statement read this morning.
[20] However, Mr Walker has noted that there are a number of mitigating factors, most significant of those is your early guilty plea which was made at the first possible opportunity, your remorse, and your willingness to engage in restorative justice. For all of the mitigating factors, Mr Walker submits that a total sentencing discount of up to 35 per cent is available.
[21] Mr Walker argues that, given the strong similarities between this case and the cases of R v Mears7 and R v Davidson,8 where starting points of four and a half years’ were adopted, a starting point of four years’ imprisonment is appropriate, in recognition that there are some aggravating factors in those two other cases that are not present here.
[22] In respect of your other charges, Mr Walker submits that no uplift is necessary for your possession of the .22 calibre rifle, given that this is factored into the manslaughter starting point. However, he contends that your cannabis offending falls into the lower end of band 2 as set out in the case of R v Terewi.9 He submits that
7 R v Mears HC Rotorua CRI-2010-069-2211, 2 February 2011.
8 R v Davidson [2012] NZHC 3448.
9 R v Terewi [1999] 3 NZLR 62 (CA).
overall, alongside your possession of non-prohibited firearms, an uplift of 12 months’ imprisonment is appropriate taking into account the totality of your offending.
[23] Overall, Mr Walker’s submission is that an end sentence in the region of three years’ and three months imprisonment is appropriate.
Defence submissions
[24] I turn now to the submissions made both in writing and orally by your counsel Ms Adams. Ms Adams properly acknowledges that a high level of denunciation and deterrence is justified in cases where firearms are present as opposed to cases when they are not. But submits that given this case is most akin to hunting incident cases, it is at the lower end of the spectrum of manslaughter cases.
[25] She draws comparison to the decisions of Mears and Davidson, that I have mentioned, she also refers to cases such as R v Fepuleai,10 Gideon v R,11 R v Goldstone12, R v Sanft,13 and R v Williams.14 These were cases that were not hunting cases but where defendants either accidentally pulled the trigger or mistakenly believed that the firearm was not loaded, and in respect of which four and a half and five years’ starting points of imprisonment were adopted respectively. She says having regard to these cases, a starting point of four years’ imprisonment should be adopted.
[26] Ms Adams agrees with the submission made to me by Mr Walker that your cannabis offending falls within Band 2 of R v Terewi, and submits that given this offending was not sophisticated, with the cannabis apparently predominantly for personal use and supplied to whānau and friends, the standalone starting point for this offending should be in the vicinity of 12 months’.
[27] With regard to your possession of firearms without a licence, Ms Adams submits such a charge would not normally attract a custodial sentence if dealt with in isolation. Overall, she agrees with Mr Walker that a total uplift of 12 months’ for the
10 R v Fepuleai [2013] NZHC 2204.
11 Gideon v R [2016] NZCA 16.
12 R v Goldstone HC Auckland CRI-2009-044-10031, 28 May 2010.
13 R v Sanft [2017] NZHC 2164.
14 R v Williams [2013] NZHC 3173.
additional charges is appropriate, resulting in an overall starting point of five years’ imprisonment.
[28] In relation to the mitigating factors, Ms Adams submits that a 25 per cent guilty plea discount is warranted, and a 10 per cent adjustment for remorse should be made, having regard the findings in the Provision of Advice to Courts (PAC) report prepared by Corrections and your willingness to participate in a Restorative Justice Conference. She also submits and this is where she differs from Mr Walker, than an additional 10 per cent discount for good character should also be available noting your minor and historic convictions and the many letters of support which have been tendered.
[29] As a result, she submits that an end sentence of two years and nine months’ imprisonment is appropriate.
Starting point
Initial starting point
[30] I now set out my analysis of the submissions that the two counsel have made. I accept the submissions of counsel that the aggravating factors of your offending are that you were reckless in failing to perform one of the most basic gun safety practices of identifying your target beyond reasonable doubt, as well as hunting in an area where you knew other people were present. Added to that your failure to have a firearms licence, and the impact of the offending on Mr Atkins’ family and friends are also relevant. This tragic incident could have been avoided where it were not for your failures that night.
[31]I consider that helpful comparisons can be drawn with the cases of Mears and
Davidson which both counsel have referred to.
[32] In Mears, the defendant was hunting at night in a popular camping area contrary to the terms of his shooting permit, and after having been informed by campers that deer had been spotted beforehand on the access road to the camping area. While in the back tray of a utility vehicle, the defendant spotted what he thought were the eyes of a deer and aimed and fired, hitting a young woman wearing a headlight
who was killed instantly. The aggravating factors in that case were the failure to consider the firing zone, that the area was known to be used by others, and the absence of proper target identification.15
[33] In Davidson, the defendant and four others were hunting deer in the early hours of the morning. The group split up, with one party spotting what they thought was another deer in the vicinity. A shot was fired but missed. The defendant saw the deer again, told a companion who was wearing a high visibility jacket to stay still, and took another shot. That shot hit the victim and killed him instantly. The aggravating factors identified in that case were the failure to adequately identify the target, shooting in the dark knowing his companion was in close proximity, and also the combination of alcohol consumption with hunting and firearms.16
[34] It is evident that there were aggravating factors present in those cases that were not present here, and that supports a view that an initial starting point less than four and a half years’ is appropriate in this case. There is no suggestion that alcohol was involved in this incident, nor any breach of a hunting permit.
[35] With respect to the other cases that Ms Adams referred to, they are less comparable but still provide some assistance.
[36] Fepuleai involved the defendant aiming a rifle at his friend and pulling the trigger in the belief that the firearm was unloaded, and this is more aggravating given the firearm was deliberately pointed at a person, and clearly involved a greater degree of recklessness.
[37] In Goldstone the greater recklessness present given the defendant knew the weapon was loaded, he was using a modified firearm, namely a sawn-off shotgun, and deliberately pointed it at the victim, although he didn’t intend to pull the trigger.
15 R v Mears, above n 7, at [16]–[17].
16 R v Davidson, above n 8, at [33]–[35].
[38] These cases lend support to the notion that a starting point of four and a half years’ for the manslaughter charge is too high. I agree with the submissions of counsel and find that a starting point of four years’ is appropriate.
Uplifts
[39] I turn now to the uplifts for your other offending. As noted by counsel, the guideline case for possession of cannabis for sale is R v Terewi. In that decision the Court of Appeal set out three categories of offending escalating in seriousness. Category 2 encompassed small-scale cultivation of cannabis plants for a commercial purpose, and was found to attract a starting point generally ranging from two to four years’ imprisonment, although a lower starting point may be justified where sales are infrequent and of a limited extent.17 Given the relatively modest amount of cannabis found (at least in terms of commercial supply), and the fact it appears this was intended to be provided only to family and friends rather than more broadly, I consider that a standalone starting point of 18 months’ imprisonment for the cannabis offending would be appropriate.
[40] With respect to your other firearms charges, I note that your unlawful possession of a firearm has been factored into the initial starting point. I also note that in other cases, such as R v Burr,18 uplifts of two months’ were given for charges of possession of a non-prohibited firearm without a licence.
[41] I now come to the overall starting point. I must also take care to ensure that your sentence reflects the totality of the offending and to ensure your sentence is not wholly out of proportion to the overall gravity of the offending. In light of this, I consider that on a totality basis an uplift of 12 months’ imprisonment, as has been submitted by both counsel, is appropriate. This brings me to an overall starting point of five years’ imprisonment.
17 R v Terewi, above n 9, at [4].
18 R v Burr [2022] NZHC 3153.
Discounts
[42] I now turn to analyse and apply the discounts and those discounts are in recognition of your personal mitigating factors. Although you do have previous convictions, I accept that these are of such a minor and historical nature that they do not warrant an uplift on your sentence.
[43] In the case of Hessell v R, the Supreme Court recognised that a guilty plea discount of up to 25 per cent can be awarded, with a discount at or near the maximum appropriate where a defendant has entered their guilty plea at the earliest possible opportunity.19 It is clear that you did that and a 25 per cent discount in recognition of your early guilty plea is therefore appropriate.
[44] The PAC report has been clear that you have shown sincere remorse for your actions. You sought to participate in restorative justice and have taken responsibility for the tragedy that has occurred. Your letter to the Atkins whānau and the letters of support, which I have read, demonstrate the genuine regret and remorse that you have felt since that fateful day. A discount for remorse has been found to be available in addition to a guilty plea discount, where an evaluation of the circumstances shows there is genuine remorse.20 I accept that your remorse is genuine, and I consider that the grounds have been made out and justify a further discount of 10 per cent.
[45] Your counsel also seeks another 10 per cent discount for previous good character. There is no doubt, having read the letters of support, that they attest to your good character. They show you are a person of standing in your community and that you are widely recognised as a devoted family man and caring father. However, a discount as high as 10 per cent is uncommon in addition to the other discounts in recognition of good character. I note that in R v Gebhardt, which was a vehicular manslaughter case, a discount of five per cent was allowed for previous good character and again in that case, that was in recognition of letters of support of family, friends and neighbours, and the fact that the defendant was a first-time offender.21 That is not quite your situation. Although I have accepted that your prior convictions are not
19 Hessell v R [2010] 1 NZLR 607 (SC) at [75].
20 At [63]–[64].
21 R v Gebhardt [2022] NZHC 1899 at [60]–[62].
matters that need result in an uplift in your sentence, they do limit the extent to which you can claim the benefit of prior good character. Weighing all the matters, including the factors that counsel have addressed me on, I consider that a discount of five per cent, in respect of good character is appropriate in your case.
[46] This results in a total discount of 40 per cent. That brings me to an end sentence of three years’ imprisonment.
[47] Before I impose that sentence, I want to express my hope Mr Peters that you use your time in custody constructively, as you indicated in your interview with the PAC report writer and you take such steps that you are able to, to ensure that an error of judgment like this, never occurs again.
Result
[48]Mr Peters please stand.
[49] On the charge of manslaughter, I sentence you to two years’ and four months’ imprisonment.
[50] On the charge of possession of cannabis for supply, I sentence you to six months’ imprisonment.
[51] On the charges of unlawful possession of a firearm and possession of a firearm without a licence, I sentence you to two months’ imprisonment.
[52] Those sentences are to be served cumulatively, resulting in a total sentence of three years’ imprisonment.
[53] I also make the further orders sought by the Crown under s 69 of the Arms Act 1983 for the forfeiture of the .22 calibre rifle, the .270 calibre rifle, double barrelled shotgun and the ammunition that have been seized by police.
[54] Finally, to all those present in the Court today, I acknowledge that the sentence that I have imposed will not take away the pain and loss caused by Mr Atkins death
and may do little to heal the hurt that you are experiencing. The sentence and calculations I have done in arriving at it, represents the response of the law to the tragedies of this nature. I express the hope that it assists you with your journey towards closure.
[55]Mr Peters, please stand down.
Churchman J
Solicitors:
Rawhiti Legal, Gisborne for Crown
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