R v Sanft

[2017] NZHC 2164

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

CRI-2016-092-006257 [2017] NZHC 2164

THE QUEEN

v

GUSTAV OTTO SANFT

Hearing:	7 September 2017
Appearances:	K Hogan for Crown P Hamlin and A Bloem for Defendant
Sentenced:	7 September 2017

SENTENCING NOTES OF VENNING J

Solicitors:           Kayes Fletcher Walker, Manukau

Copy to:            P Hamlin/A Bloem, Auckland

R v SANFT [2017] NZHC 2164 [7 September 2017]

[1]      Gustaf Otto Sanft you are for sentence on the charges of manslaughter and unlawful possession of a pistol, a sawn-off shotgun. You pleaded guilty to the charge of unlawful possession of a pistol and were found guilty by a jury on the charge of manslaughter. The maximum penalty for manslaughter is life imprisonment.

[2]      On the morning of Thursday, 2 June 2016 you pointed the shotgun towards your daughter Amokura and discharged it.  She suffered horrendous injuries to her face and head and died instantly.

[3]      There is a divergence of view between the Crown and you as to the essential background facts.  Your case at trial was and remains for sentencing that you did not know the gun was loaded or that it was capable of discharging a shot.  You say the shotgun discharged accidentally, that it just exploded while you were examining it. You deny acting out of any anger towards Amokura.

[4]      The Crown accepts that you did not know the shotgun was loaded and that you did not intend to harm Amokura.  But the Crown submits that on the morning of

2 June Amokura was playing up and jumping on the couch and says you pointed the shotgun towards her and pulled the trigger.

[5]      Mr Sanft, having heard the evidence at trial I have a clear view of what happened on 2 June 2016.  I am satisfied that you were much more familiar with the shotgun than you were prepared to accept.   I reject your evidence that you had intended to get rid of the gun for some time. Your explanation of how you came into possession of it in the first instance is not credible.  To suggest it was put under you while you were sleeping on a couch in the garage some months before is simply inherently unlikely.  To then suggest that while you hated firearms, as you said, you did nothing to get rid of it for several months (including not returning it to the person who left it with you when you had the opportunity) beggars belief.

[6]      I find that during the time you had the shotgun in your possession you and others from time to time, had it out, looked at it and tried to operate  it.   The cartridges were found at various places around your property.  You told the police

you had tried to fire it.  You may well have experienced difficulty in firing it but you knew how to load and unload it and you knew how it operated.  On the morning of 2

June 2016 you had it out again.   You failed to check whether it was loaded that morning.

[7]      The firearm was clearly defective as the experts agreed.  Sometimes it did not discharge when the trigger was pulled and it could, on occasions, discharge if the hammer was pulled back and flicked in a certain way.   Importantly for present purposes however, I find that you deliberately pointed the firearm towards Amokura and pulled the trigger.  Your denial that you pulled the trigger is something that you have latched onto after the event to explain perhaps to yourself and to others the terrible consequences of your actions that morning.  It must be very difficult for you to accept those consequences.

[8]      At  trial  your  case  was  the  shotgun  just  ‘exploded’.    That  is  simply not possible.  The experts’ evidence confirmed that the gun could only discharge if the trigger was pulled or if the hammer was flicked in a certain way.  In your evidence- in-chief and cross-examination you did not suggest you were flicking the hammer in the way the experts described.  Only in re-examination did you say that you were tapping the gun but your demonstration of what you were doing was not at all consistent with the flicking motion the expert described as necessary to discharge the shotgun.  I find that the true position is that you pulled the trigger as you told more than one police officer on the morning of 2 June 2016. As you told Constable Kanai, the first officer to speak to you:   “I pulled the trigger.   She was just playing up”. Further, in the interview with Detective Ralph you said that you had tried to fire the shotgun previously and it had never worked. You again said “I pulled the trigger”.

[9]      While I am prepared to accept you may not have been angry with Amokura why you pointed the gun towards her remains inexplicable.

[10]     In sentencing you I am required to have regard to the purposes and principles of the Sentencing Act 2002.  The gravity and seriousness of the offence is reflected by the maximum penalty of life imprisonment.  Importantly there is a need to hold you accountable for the harm you have caused to your family and to the community

with the loss of a life of a young child, the unnecessary death of your own child in this case.  The sentence must denounce and deter actions such as yours.  I also take into account the need to impose the least restrictive sentence and to consider the effect of the sentence of imprisonment on your partner and family.   I also have regard to other relevant cases.

[11]     Both counsel have referred to a number of other cases where people have been sentenced for manslaughter involving the use of a firearm.1   I have considered the cases counsel have referred to along with other cases.2   The starting point for sentences in those cases ranges between four and five years.   Mr Hamlin has submitted that an important and distinguishing factor of those cases from yours was

that they all involved defendants who knew the firearm was loaded and operational. However, in the case of R v Fepuleai Mr Fepuleai did not know the magazine had been replaced and that the gun was loaded before pointing the gun at his cousin in jest and killing him.3    In that case the Court took a starting point of four years, six months.

[12]     Further, as Ms Hogan has submitted, the fact that the shotgun was pointed towards Amokura and the trigger pulled in this case is a particularly significant factor.

[13]     At trial the Crown alleged that you had breached your duty to take care while in charge of a dangerous item in a number of ways:

·         failing to ensure the shotgun was not loaded;

·         failing to ensure that the safety catch was on;

·         holding the gun in close proximity to Amokura;

1      R v Bennet CA457/03, 23 September 2004;  R v Wickliffe [1987] 1 NZLR 55 (CA); Cooper v R

[2014] NZCA 275; R v Waipuka [2013] NZHC 221; R v Goldstone HC Auckland CRI-2009-

044-10031, 28 May 2010;  Gideon v R [2016] NZCA 16; R v Flavell [2014] NZHC 3373; R v
Mears HC Rotorua CRI-2010-069-002211, 2 February 2011;  and R v Williams [2013] NZHC

3173.

2      R v Fepuleai [2013] NZHC 2204.

3      R v Fepuleai, above n 2.

·         pointing the shotgun at Amokura;  and

·         pulling the trigger.

[14]     Each one of those failings was made out on the evidence.  Your negligence was extreme and a major departure from the standard of care, particularly in circumstances where you had that shotgun in close proximity to children.

[15]   As you have heard the Crown argue for a starting point of six years’ imprisonment.  Mr Hamlin has submitted a starting point of three years, six months is appropriate.   Having regard to the facts of your case as I have found them, the serious and extreme departure from the standard of care that you as a parent should have shown towards your children and Amokura in particular, and having regard to the authorities, I take a starting point of five years’ imprisonment for both offences.

[16]     I then turn to personal aggravating and mitigating factors.   There are no personal aggravating factors.

[17]     Mr Hamlin has provided the Court with a number of references and letters in support, including a letter from yourself.  I acknowledge that in the past you have done some volunteer work and some good services.  However, you have to accept you also have a number of convictions.  While the convictions are unrelated to your present offending, it simply means you are not entitled to a credit for good character. The position is neutral.

[18]     Mr Hamlin also argues for a reduction in sentence for remorse and for your participation in the restorative justice conference.   I have read and considered the very full and detailed report from that conference which was attended by a number of parties and I have heard the support reaffirmed this morning by the victims in the victim impact statements.

[19]     In Hessell v R the Supreme Court confirmed that the Court is required to treat any remorse shown by an offender as a mitigating factor.4     Mr Sanft I have real

4      R v Hessell [2010] NZSC 135, [2011] 1 NZLR 607.

reservations as to whether you are truly remorseful, as that phrase is understood in the context of sentencing.  Remorse is not necessarily shown even by a guilty plea. Sentencing judges are well aware that remorse is often no more than self pity of a defendant for his predicament and may properly be sceptical about claims of genuine remorse.

[20]     Remorse is defined as a deep regret or guilt for doing something morally wrong;   the fact or state of feeling sorrow for committing a sin;   repentance, or compunction.5    On my assessment Mr Sanft it is difficult to see that you are remorseful in that way.  I accept that you are sorry for the fact you killed Amokura in the terrible way you did.   You were visibly upset that day.   You were also upset during the course of the trial and during the course of the restorative justice conference.  But while I accept you are extremely sorry for the fact that Amokura is

dead,  you  have  yet  to  accept  the  full  extent  of  your  responsibility  for  the consequences of your actions.  You continue to deny you pulled the trigger.  Your denials came through counsel’s submissions on your behalf and also through the probation officer’s report to the Court. The probation officer records you say you are still at a loss as to how the weapon discharged.  You have a poor comprehension of the potential consequences of your actions. You still say you were simply examining the shotgun.   As you have heard I do not accept that.   The shotgun did not just

‘explode’. You pulled the trigger.

[21]     For those reasons Mr Sanft any reduction for remorse must necessarily be limited.

[22]     I take into account the outcome of the restorative justice meeting which you attended and note you have verbally made amends to your family.  You have strong support from  your family and  you are fortunate in that.   They have effectively forgiven you and have submitted to the Court you should be permitted to return home.   That is not possible as counsel acknowledge.   That support in some ways bolsters your view that you are a victim and may make it more difficult for you to take responsibility for the consequences of your actions.   Nevertheless I take into

account  the  views  of  the  members  of  your  family  as  expressed  through  the

5      OED Online (Oxford University Press, June 2017).

restorative justice conference and in the thoughtful victim impact reports.   I am going to reduce the starting point for limited remorse,  your participation in the restorative justice conference and to take account of your whanau’s views.

[23]     Mr Sanft please stand.  On the charge of manslaughter you are sentenced to imprisonment for four years, four months.  On the charge of unlawful possession of a pistol you are sentenced to imprisonment for three months.  The term is concurrent. The effective sentence is four years, four months.

[24]     There will be an order for destruction of the firearm.

[25]     Stand down.

Venning J