R v Smith

[2023] NZHC 2102

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-009-8192

[2023] NZHC 2102

THE KING

v

JOSHUA DAVID CRAIG SMITH DANIEL NELSON SPARKS

Hearing:

4 August 2023

Counsel:

B Hawes and A M Harvey for the Crown

J R Rapley KC and D M Kirby for the Defendant Smith D J Matthews for the Defendant Sparks

Date:

9 August 2023

SENTENCING REMARKS OF HARLAND J

[1]    I start first of all by acknowledging all who are present here today. This includes those who are here to support the memory of Connor Whitehead and those who are here today to support the defendants at their sentencing. The circumstances that bring everybody together today are tragic. The death of a young person is hard enough, however, the death of a young person who happened to be in the wrong place at the wrong time, and who was killed in such a violent way, is extremely distressing. Nothing I say in sentencing the defendants responsible for his death or those who assisted them will make that loss any easier. Many of you will find the sentencing process to be clinical, dispassionate and somewhat removed. Hearing again what happened to Connor and comparing what happened to him to what may have happened in other cases will be both distressing and distasteful to some. But, there is a

R v SMITH & SPARKS [2023] NZHC 2102 [9 August 2023]

sentencing process I must follow to ensure that the sentences I impose today are transparent but also that they accord with the law.

[2]    So, I now address you Mr Sparks and you Mr Smith. You both appear before the Court today for sentence having been found guilty by a jury of Connor’s manslaughter and, in your case Mr Sparks, the plea of guilty at the outset of the trial to the possession of ammunition. I intend to deal with you both together by outlining matters that are common to you both and then to address each of you separately. You may remain seated throughout the process but I will ask you to stand at the end.

[3]    As I am sure you both know, the maximum penalty for manslaughter is life imprisonment.

[4]    It is accepted by both of you that your end sentences must be a term of imprisonment. The question for me to determine is what the starting point for each of your terms of imprisonment should be, whether an uplift is required to reflect your respective previous convictions and what deductions might be available to you both for mitigating matters and, if so, to what extent.

The offending

[5]I start by outlining what happened.

[6]    On 5 November 2021, Mr Sparks your daughter was celebrating her 15th birthday at a party at her home in Heaphy Place. She shared that address with her mother, her mother’s partner and her 18 year old brother. She invited her friends, one of whom was Connor. The evening started out enjoyably and without incident. However, at some point, a group of uninvited young people arrived at the party and started causing trouble. That group was associated with the Crips gang. This group, or members of it, assaulted partygoers and distracted the attention of the adults supervising the party, who had to attend to some of the injuries caused by some of the uninvited group.

[7]    Nelson Sparks, your son Mr Sparks, who was home on the night of the party, was scared of what was happening. He decided to call you to come and help. He told

you there were people at the address who were in a gang and they were scaring him. When you asked Nelson whether they had “any weapons” he told you they were “just kids” and that they did not have any weapons.

[8]    That evening after work both of you has been at Mr Sparks’ house where you had spent time together. It now appears that you consumed methamphetamine and alcohol that evening in the garage. There is no suggestion that you Mr Smith knew exactly what Mr Sparks had been told by his son. Nonetheless, you were both at Mr Sparks’ house together that evening in the garage and, at Mr Sparks’ suggestion, you both went to the party in your car Mr Smith. A sawn-off shotgun and a shotgun that was a prohibited weapon, because of its magazine capacity, were placed in the car before you left. Both were loaded.

[9]    When you arrived at Heaphy Place, there were a number of young people in the cul de sac and I accept it was immediately apparent that it was a tense and volatile situation. There was shouting and yelling, with gang slogans and signs being uttered. Bottles were thrown. It is not entirely clear what you Mr Smith did initially, but you Mr Sparks went to remonstrate with the group of Crips who appeared to be milling around in the cul de sac towards the entrance of your former partner’s property. The evidence was that Mr Sparks you made gang signs as well, no doubt in an attempt to intimidate the Crips. This seemed to have worked because you consider, and I accept, that things then appeared to quieten down, at least a little bit.

[10]   At some point however during all of this, Mr Smith you exited the car with a shotgun. There was a stand-off between one of the more vocal Crips while you were in the middle of the cul de sac. You were described by witnesses as waving the firearm around and pointing it directly at this young person. There was shouting and yelling, and more bottles thrown. The young person goaded you to “just fucken shoot me”.

[11]   You Mr Smith discharged the firearm you had been waving about. You fired the shotgun to the right of the young person who had goaded you. The shot from the shotgun connected with Connor Whitehead who was innocently standing by the fence, just back from the entrance to the driveway of the property where the party was being held. The jury, by their verdict, must have accepted that you Mr Smith fired the

shotgun without intending to shoot anyone, let alone Connor. But, with all the young people milling around and the high tension that was evident in the cul de sac, it is hard to understand how you thought anything good would be achieved by your actions. Mr Smith, you say that you did not know the shotgun you were waving about and then fired was loaded. This explanation is not, in my view, plausible. There would be no reason for you to pull the trigger on the shotgun if you did not think it was loaded.

[12]   Connor, who was an innocent bystander, was between 9.1 and 15.2 metres away from the shotgun when you discharged it. Tragically, as we know, Connor was fatally wounded by the shot you discharged. He was predominantly struck in the chest and his injuries were immediately unsurvivable.

[13]   The firearm used to discharge the fatal shot was a sawn-off shotgun both of you had found and test fired just before the incident. So you knew that it was capable of being fired. Because it was a sawn-off, it was a pistol. It was in good working order and was safety test fired by the Police. You intentionally Mr Smith discharged the firearm even though you did not intend to kill anyone when you did so.

[14]   When Mr Smith discharged the firearm, you Mr Sparks immediately returned to the vehicle, took out the other shotgun (the prohibited firearm) and fired it into the air. There is independent ESR evidence to verify this, given that the wadding linked to this shotgun was found in the roof of the address in the gutter.

[15]   After the shotguns were discharged, and as we know, both of you fled the scene immediately.

[16]   After fleeing the scene, you Mr Sparks were told by your son that someone had been shot. You both continued to drive around in a panicked state but ran out of petrol at about 11.10 pm, leaving your vehicle on Matson Avenue.

[17]   You, Mr Sparks, contacted your partner Ms Archbold, to arrange to be picked up. You were instrumental in arranging, through her, for a car to be uplifted for both of you to use and for you to go and stay at Mr McKay’s house. You were actively involved with her in making arrangements to evade the Police and get rid of the

evidence. All of this occurred once you found out, very shortly after incident, that Connor had been shot even though you did not know him or possibly at that point did not even know his name.

[18]   In the hours after the shooting, your phone calls were intercepted by the Police. In one of these calls, you Mr Smith told Joshua Awhitu, who affiliates to the Black Power gang, that you had “a run in with the Crips tonight” and that you had “popped off some shots bro and we might’ve shot one of them”. You later commented that he “could be fuckin dead”.

[19]   What you did after this is particularly disturbing Mr Smith. You called the Police to report your car was stolen. The intercepted communications in relation to these calls were also played at trial. You and Mr Sparks buried the firearms in Bottle Lake Forest. And when you finally persuaded your [co-defendant partner] to pick you up, even though she was initially reluctant to do so, she took you to an undisclosed addressed and later returned you to your home. While there, I have no difficulty in concluding you burnt clothing that you had been wearing in the fireplace. You were found by the Police at your property, hiding in the bonnet of a vehicle.

[20]   Mr Smith, when you were interviewed, you initially lied to the Police. But you later provided assistance by providing them with the location of the firearms.

[21]   In comparison, Mr Sparks, when you were interviewed by the Police, you were upfront and provided them with a considerable amount of information. And, during that interview, very early on, you expressed remorse for what had happened and for your involvement.

Victim impact statements

[22]   All of us here today have listened to the heart-felt stress felt by the victims of Connor’s death. These are members of his family, people who cared for him and loved him dearly. I have also read victim impact statements from two of Connor’s friends. It is not hard to see, from what we have all heard about the person Connor was, how distressing the manner of his death has been for them. Because he was a young man with his future ahead of him, this has been particularly difficult for his family.

[23]   For Connor’s immediate family, the impact on them has included profound effects on their emotional and psychological health to the extent that both of Connor’s parents and his stepmother have been unable to work in full-time employment with the consequences that has. All grieve the loss of the milestones they may have shared with Connor as he developed into adulthood. I am grateful for the insights members of Connor’s family and friends have given to me about the young man Connor was. And I am confident that those special and beautiful qualities he displayed will, in time, provide family and friends with strength and positive memories rather than negative memories.

[24]I now turn to the approach I must take to sentencing you.

Approach to sentencing

[25]   In sentencing you both, I must consider the purposes and principles of the Sentencing Act 2002 (the Act). While I must impose what should be the least restrictive outcome, I must also take into account the gravity of your offending, including your culpability, that is your blameworthiness or responsibility for it, and I also need to take into account the seriousness of the offence. Any sentence I must impose must denounce your conduct, deter both of you and others in the community from committing similar offences in the future and hold you both accountable for the harm your offending has caused.

[26]   Determining the appropriate sentence first requires me to set a starting point which will be based on the seriousness of the offending. Having set the starting point, I then consider your personal circumstances, which may operate to reduce or lower the starting point. And this will produce the end sentence.

Starting point

[27]   Starting with the starting point. There is no guideline judgment for manslaughter sentencing because it covers a wide range of circumstances. I agree with Mr Hawes that, for this reason, sentencing for manslaughter is generally assessed by way of comparison with similar cases, sometimes with reference to another

guideline judgment of the Court of Appeal called R v Taueki.1 It is important to refer to case law to, as much as possible, ensure that similar sentences are delivered for similar offending in order for defendants to be fairly treated. This is referred to as the principle of consistency. I accept that the Taueki guidelines will not always be relevant to manslaughter cases and should be applied cautiously. In this case, I consider it provides a useful cross-check but take the comparison no further than that.

MR SMITH

[28]I now address my remarks to you Mr Smith.

[29]   In your case Mr Smith, I consider the aggravating features of your offending are, first and foremost, that extreme violence and serious harm that occurred as a result of your actions. As I have said, Connor, an innocent young person, was fatally shot by you. When a loaded weapon is used to threaten anyone in circumstances, and then it is discharged, the circumstances can only be described as serious and involving a high level of violence.2

[30]   I am not persuaded that your offending was truly spontaneous or impulsive. You had travelled with Mr Sparks to Heaphy Place knowing that there was a potentially volatile situation occurring there. The fact you knew this is, in my view, an aggravating factor. You responded to this by arming yourself before you left. Although Mr Sparks put the guns in the car, in my view, you both knew they were there. And this is further aggravated by the fact that the shotguns were loaded. So, in short, I don’t accept that you didn’t know that the firearms were loaded.

[31]   At any point during the incident you could have driven off but you did not do so.

[32]   Although it is not the predominant factor in my view, there is no getting around the fact that this incident had gang undertones. You responded to a situation where you knew the Crips were involved and, afterwards, it was you, not Mr Sparks, who contacted Mr Awhitu who is a member of the Black Power.

1      R v Taueki [2005] 3 NZLR 372.

2      R v Harrison [2023] NZHC 1475 at [42].

[33]   I agree with Mr Hawes that the act of firing a sawn-off weapon at chest height into the driveway of a party is extremely dangerous. Not only that, but the fact that you were simply shooting into a dark area at the address was a grossly reckless thing to do. Connor was vulnerable. The nature of the discharge of the firearm, its height and its location meant there was nothing he could do to protect himself.

[34]   Although the Crown submitted an aggravating factor of your offending was that you failed to assist Connor following the shooting, I accept that you did not know at the time you left that someone had been struck and killed. You must however have known that there would be serious repercussions following the discharge of the firearms, given that you fled the scene.

[35]   In my view, your actions, once you found out that Connor had been killed, particularly by reporting your car as stolen and taking the steps you did to avoid arrest, hide the firearm and destroy evidence, are all aggravating factors.

Comparative cases

[36]   The lawyers have provided me with cases which they submit will assist me to adopt a starting point for your offending.3

[37]   The Crown submitted a starting point of between nine and 10 years’ imprisonment was justified in this case and Mr Rapley submitted a starting point of eight years was in line with the cases. Inevitably, each case depends on its own facts.

[38]   In R v Harris, a starting point of 11 years’ imprisonment was adopted for Mr Harris.4 This offending occurred in the context of a criminal enterprise wherein the defendants impersonated a friend of the victim to rob him of methamphetamine. Mr Harris had pointed a loaded firearm at the victim’s head before striking him on his helmet with it. Mr Harris had closed the bolt before striking the victim but the firearm discharged when it hit the victim on the head.

3      In my oral notes I recorded that I had read these decisions carefully. I said I would not traverse them orally but they would appear in my written sentencing remarks.

4      R v Harris, North & Murray [2023] NZHC 1475.

[39]   A lower starting point is appropriate here as, in Harris, there was a significant level of premeditation and the level of violence was greater. But, I consider there was a similar level of recklessness involved in this offending because the firearm was discharged in an area where a number of young people had been congregating shortly before and a degree of premeditation because you knew the firearms were in the car when you left to travel to Heaphy Place.

[40]   R v Johnson concerned a violent dispute between neighbours.5 The defendant had intended and thought he had shot the victim in the foot using a semi-automatic shotgun. The defendant had invaded the victim’s home, and the victim had armed himself with a baseball bat. After a struggle, the defendant discharged the firearm in order to spend the rounds in the gun so it could not be used against him. One shot ricocheted and hit the victim’s leg and another hit him in the chest, killing him. A starting point of eight and a half years’ imprisonment was adopted. The fact there was an element of provocation was considered because the victim had physically attacked the defendant before he returned to his own home where the shooting occurred.

[41]   In my view, a higher starting point is required in your case. You both arrived at a party attended by teenagers and with loaded firearms. You Mr Smith went with the intention of helping Mr Sparks “scare off” young people who were associated with a gang. Further, there was no element of provocation from the victim. To the contrary, Connor Whitehead was completely innocent, unarmed and not involved in the earlier conflict that had occurred when the uninvited young people assaulted other partygoers. The level of violence in Johnson was greater, but this does not, in my view, outweigh the other aggravating factors I have referred to.

[42]   Counsel also referred to Jeffries-Smith v R.6 Mr Jeffries-Smith was a street- level drug dealer who had been taxed by the victim, a senior gang member. The defendant armed himself with a firearm and waited in the kitchen for the victim, who had not given the defendant his car back despite him having paid his debt in money and drugs. When the victim came into the kitchen, the defendant pointed the firearm

5      R v Johnson [2022] NZHC 2560.

6      Jeffries-Smith v R [2020] NZCA 315.

at him. When the victim said something dismissive and began to walk away, he was shot twice in the back. A starting point of 10 years’ imprisonment was adopted.

[43]   The facts in this case are different as Connor was more defenceless than the victim in Jeffries-Smith. As well, it cannot be ignored that a loaded gun had been waved around in the cul de sac which was occupied by young people and very near to the address where the party was being held. The level of recklessness displayed in this case was significant. A similar starting point, but for different reasons, could therefore be adopted.

[44]   Mr Rapley cited R v Christie as the most comparable case.7 In that case, the defendant deliberately took a loaded firearm to a dispute with the victim, intending to fire the gun into the ground. Instead, the victim was shot. The exact circumstances in which this occurred were unclear on the evidence but, upon leaving, the defendant also said to others “I’ll shoot you bastards”. A starting point of seven and a half years’ imprisonment was adopted.

[45]   In my view, the offending in your case is more serious and justifies a higher starting point. As I have already mentioned, Connor was more vulnerable and there is arguably more recklessness in this case as the gun was fired into an area where young people had been and were congregating. There is also the gang element in this case. However, in my view, the element of premeditation evidenced by taking a loaded gun to the party and the accidental nature of the death are similar in both cases.

[46]   In my view, a range of between eight and 10 years’ imprisonment is appropriate. Bearing in mind all the matters I have referred to, I adopt a starting point of 10 years’ imprisonment.

Uplift

[47]   In your case Mr Smith, there are personal aggravating features that could be recognised by an uplift from that starting point. You have an extensive criminal history. At the age of 34, you have amassed some 136 criminal convictions. You first

7      R v Christie HC Gisborne CRI-2003-016-6522, 28 October 2004.

offended when you were 17 years of age. To be fair to you, most of your earlier convictions relate to poor driving but they also display a lack of respect for authority, given that, in the main, they comprise driving while disqualified. In terms of non- compliance, you also have convictions for breaches of court sentences (breaches of community work, breach of home detention conditions and breach of court imposed release conditions following a term of imprisonment). As well, you have drugs convictions including for supplying methamphetamine in 2012 and cultivating cannabis in 2014 and 2017.

[48]   You have dishonesty-related offending but, interestingly, only one prior charge of violence, a conviction for male assaults female in 2015.

[49]   You have received a number of rehabilitative-focused sentences. In 2020, you received sentences of intensive supervision for two years, in 2019 another sentence of intensive supervision for two years and, in 2015, another for 12 months. You have also received and served sentences of community detention, home detention and imprisonment.

[50]   The Crown submits a considerable uplift is warranted because of your conviction history and because you were on sentences of community detention and intensive supervision when you committed this offence. Your lawyer submits a minimal or no uplift is warranted because your previous convictions do not display any similarity to this offending.

[51]   I consider an uplift of five per cent is entirely warranted. Although you have many previous convictions, I take into account that you only have one for violent offending and none are for firearms offending. But, you have offended while on Court based sentence.

Personal and mitigating matters

[52]I now turn to your personal and mitigating circumstances.

[53]   The Crown accepts, through counsel, you offered to plead guilty to manslaughter at an early stage. This was rejected by the Crown however it is accepted

by them now that it is appropriate as a matter of law that a discount within the range of 15 to 20 per cent would be appropriate to reflect this.

[54]   Your lawyer submits a discount of 25 per cent is required to reflect your early acknowledgement that you were guilty of manslaughter.

[55]   You were arrested on 7 November 2021. On 16 February 2022 there was an enquiry made on your behalf about whether the Crown would accept a plea to manslaughter. This enquiry was made in writing, through counsel, prior to the very first procedural step, at a case management conference. The offer was again made by letter of 28 February 2022 at a time, as Mr Rapley has said, when it was not known independently from the ESR who had fired the fatal shot. And, again, another offer was made before trial in January 2023. At this time, it was clearly known who fired the fatal shot, it was you, but you had obviously admitted that earlier by your willingness to plead guilty to manslaughter before that was known.

[56]   I am not persuaded that a full discount of 25 per cent is warranted. Nonetheless, given what I have just referred to, a significant discount is, in my view, appropriate. I adopt 20 per cent.

[57]   I also accept that you have displayed significant remorse for your offending. You have written a letter to the family and you, in my view, are genuine in your expression of remorse. A further five per cent deduction over and above the 20 per cent I have already allowed is appropriate.

[58]   Then there are the matters referred to in the s 27 report about your background. It outlines issues you had with a difficult upbringing, one which is characterised by your father’s violence towards you and your mother. You were a capable student but regularly got into trouble at school and left with few qualifications.

[59]   Your addiction to cannabis at an early age, likely as a result of your father’s involvement with the drug, started your difficulties with substance abuse. In addition, you were a young father and did not cope with parenthood at an early age. In terms of substance abuse, your addictions then developed into use of methamphetamine

which clearly created difficulties, as it always would, in your relationships, particularly with [your co-defendant partner]. You appear to have tried, with some but not complete success, to turn your life around since you moved to Christchurch in around 2017.

[60]   You met Mr Sparks just before the offending, a matter of weeks before, and say that you have never been a member of any gang, although it appears to me you quickly developed a relationship with Mr Awhitu. The report writer considers that the normalisation of violence during your childhood, substance abuse and the cycle of your offending are factors that have contributed to your offending on this occasion. I agree.

[61]I am persuaded a deduction is warranted for this. I adopt 10 per cent.

Result

[62]   Taking all of these matters into account, even though the deductions I have allowed amount to 35 per cent, once the five per cent is taken into account for the uplift, this means you are, in my view, entitled to deductions off the starting point amounting to 30 per cent. This means that your end sentence is one of seven years’ imprisonment.

[63]Mr Smith, please stand.

[64]You are convicted and sentenced to a term of seven years’ imprisonment.

[65]   I will ask you to stand down after I have sentenced Mr Sparks. Thank you. Please be seated.

MR SPARKS

[66]   As for you Mr Sparks, Mr Hawes submitted the starting point for you should be the same as that which I have adopted for Mr Smith. However, your lawyer submitted the appropriate starting point was a term of seven years’ imprisonment, but

this was based on a starting point nominated for Mr Smith of eight years’ imprisonment.

[67]   The aggravating features for you are the same as those I have already outlined that apply to Mr Smith. The one distinguishing feature is that you did not fire the fatal shot. And I agree with Mr Matthews that this factor requires recognition and a slightly lower starting point.

[68]I adopt a starting point of nine years’ imprisonment for you.

Uplift

[69]   Mr Sparks, you are 45 years of age. You have a considerable criminal history although it is nowhere near as extensive as Mr Smith’s. You commenced offending at the age of 18. Much of your previous history relates to dishonesty offending and driving offences. There are also convictions for non-compliance with court orders, including failure to answer court bail and breach of community work. You have two convictions for possession of a weapon and assault, with the intent to show that you intended to use the weapon, and one of common assault in a family violence situation.

[70]   The most serious of your previous convictions relate to unlawfully possessing firearms, wounding with intent to injure with a reckless disregard, threatening to kill or do grievous bodily harm, recklessly discharging a firearm and a second conviction for possession of an offensive weapon. For this offending, you were sentenced in December 2012 to a term of imprisonment for two years and received a first strike warning. But, after this sentence, you appear to have largely managed to stay out of trouble apart from in relation to driving matters and a charge of cultivation of cannabis, which was extremely minor because you were only ordered to come up for sentence if called upon within one year. So, I accept that, since the term of imprisonment in 2012, you have taken significant steps to turn your life around and this is consistent with what your son told us at trial that you have been trying to do. I agree therefore that your previous conviction list indicates you have been making efforts to lead a better life.

[71]   Your lawyer acknowledges that an uplift is open to the Court. However, it was submitted that any uplift should not exceed six months.8

[72]   I consider there are similarities between your previous conviction history and that of Mr North in the case of R v Harris, North and Murray cited by the Crown.9 Mr North had a criminal history which was described as extensive. It included aggravated robbery, four convictions for possession of a pistol or firearm, robbery and aggravated burglary. An uplift of six months was added to the starting point of nine years’ imprisonment to reflect this history.

[73]   At the time of your offending Mr Sparks, you were subject to an order to come up for sentence if called upon that had been imposed earlier that year in respect of charges of receiving and cultivation of cannabis. The Crown has not applied to action this, and the offences are of a different nature to this offending. This must however be recognised as part of any uplift.

[74]   Although your previous conviction list is not as extensive as Mr Smith’s, because of your firearms convictions and the matter referred to in [73], I consider an uplift is warranted. And in my view, but for different reasons, an uplift of five per cent is justified.

Personal and mitigating matters

[75]I now turn to personal and mitigating matters relating to you.

[76]   The Crown accepts that a small discount is warranted for you offering to plead guilty to manslaughter but maintains it should be no more than five per cent.

[77]   You offered to plead guilty to manslaughter three weeks before the trial. This offer however followed verbal discussions between your lawyer and the Crown. Although you did not concede the issue of manslaughter at trial, I agree with your lawyer that, from a legal perspective, this is immaterial to the credit that ought to be

8      I noted in my oral remarks that cases had been referred to to justify this, which I outlined would be in my written sentencing remarks.

9      R v Harris, North & Murray, above n 4.

available for your offer to do so prior to trial. Your lawyer submitted that a credit of 15 per cent was appropriate, and I agree. I adopt a deduction of 15 per cent.

[78]   Then there is the question of your remorse for your offending. On this, and I say this to members of the public, it is important to acknowledge that people express remorse in different ways. What one person might interpret as being an expression of remorse might not in fact be entirely accurate. Some people have difficulty expressing themselves in a particular way, but this does not mean that they are not remorseful. I have very carefully read your letter Mr Sparks and I consider you have expressed your remorse in the way that you can, understanding the limitations that you have with reading and writing. I also accept that you have wanted to say sorry to Connor’s family but you do not think they want to accept it from you. You have been prepared to express your remorse to them directly and you remain willing to do so at a later date if this is what they want.

[79]   In my view, you are genuinely remorseful for your role in this offending. And that was particularly evident in your interview with the Police. As well, as with Mr Smith, I adopt a deduction of five per cent.

[80]   Then there are the other matters referred to in the s 27 report. Your report details a background of extreme deprivation with horrific sexual abuse at an early age which has had a lasting effect throughout your life. You were, through no fault of your own, deprived of care, adequate housing, love and affection. Gang connections for you were inevitable but surprisingly and to your credit not a path you traversed early on. Unsurprisingly, given your appalling background, which was not your fault, you have suffered mental health issues. Against this background, it is to your credit that you managed to find work with Mr Morrison. He is a strong supporter of you and is prepared to continue to help you. He and his wife have paid for counselling to assist you in the past and you have continued with that. And you have undertaken counselling willingly.

[81]   Unsurprisingly, it seems the violence and abuse you suffered in early relationships has carried through into your own family relationships and has led to substance abuse issues for you. The links between your background and your

offending are very clear in my view. This does not excuse but it does explain it to a degree. I adopt 15 per cent to reflect your background.

Result

[82]   Bearing in mind the deductions of 35 per cent I have allowed, for different reasons from Mr Smith but the same end result, but taking into account the five per cent uplift for your prior convictions, again, the same as for Mr Smith but for different reasons, a 30 per cent deduction from the starting point of nine years is warranted. This translates to an end sentence of six years three months’ imprisonment.

[83]Mr Sparks, if you could please stand.

[84]   Mr Sparks, you are convicted and sentenced to imprisonment on the charge of manslaughter for a period of six years and three months. In relation to the remaining charge, you are convicted and discharged.

[85]Both defendants can stand down now please.

Harland J