R v Smith

[2021] NZHC 996

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-090-1566

[2021] NZHC 996

THE QUEEN

v

AMY CHRISTINE SMITH

Hearing:	29 April 2021
Appearances:	D G Johnstone and E J Smith for Crown S J Gray for Defendant
Sentence:	29 April 2021

SENTENCING REMARKS OF PETERS J

Solicitors:           Meredith Connell, Crown Solicitor, Auckland Counsel: S J Gray, Auckland

R v SMITH [2021] NZHC 996 [29 April 2021]

[1]                 Ms Smith, you are for sentence today for the manslaughter of Daniel Taylor on 3 April 2019.1 The maximum sentence for manslaughter is life imprisonment.2

[2]                 By a majority, a jury found you not guilty of murder but guilty of manslaughter following a trial in February and March 2021 at which I presided, so almost two years after Mr Taylor’s death. The trial being recent, I have a very clear recollection of the facts and the evidence and, indeed, as I said before, I have refreshed my memory on the evidence over the last few days in preparation for today.

[3]                 Following the jury’s verdict, I entered a conviction for manslaughter and gave you what we refer to as the “first strike” warning.

[4]                 Before I go any further, I wish to acknowledge Mr Taylor’s family. I am very sorry that Mrs Taylor Snr is unwell and not able to be with us. It would have been very difficult for you, and for your mother, to sit through the trial, but you have all done so, and she did so, with considerable dignity.

[5]                 This morning I have heard statements from Faye and Debra Taylor, and Elle Grobben and Summer Ash. And, of course, I have also had the benefit, before this morning, of reading those statements and the one provided by Carol Taylor. No one in the courtroom will be in any doubt about what Mr Taylor’s death has meant for those close to him.

[6]                 Mr Taylor was a greatly loved son, brother and father, uncle, grandfather and of course, Ms Smith, he was also your partner of 12 years.

Process

[7]                 In so far as concerns the process to be followed this morning, it is necessary for me first to summarise the facts of the offending and what happened after that and before trial. Then I can turn to the sentencing process itself, which comprises two stages. The process does take some time but I need to explain the reasons for what I

1      Crimes Act 1961, s 171.

2      Section 177.

have decided to the Crown, to Mr Taylor’s family, and of course to you. You will not know the sentence until I get to the very end, so please bear with me until then.

Facts

[8]There was never much dispute at trial about what occurred.

[9]                 You and Mr Taylor lived on his farm at South Head. Mr Taylor had a substantial crop of cannabis growing on his farm. You were both addicted to cannabis and methamphetamine.

[10]             On about 2 April 2019, so the day before Mr Taylor died, you and he learned that you were going to be the victims of some type of “stand-over” which would deprive you of some of the crop, and therefore income.

[11]             Mr Taylor had spent a good part of 2 April trying to defuse that threat, but there were loaded firearms in various parts of the house just in case the worst happened.

[12]             In the early hours of 3 April 2019, when you and Mr Taylor were in bed upstairs, you heard your dogs barking, then subside, and then start up again. You thought this spelt the very trouble you and Mr Taylor had hoped to avoid. You went downstairs to the living room, and turned off all the lights so you were not visible to anyone outside. This meant the room was pitch black, there being no street or other ambient lighting.

[13]             Your evidence was that you felt the draught from one of the doors opening and thought someone — an intruder — had actually now come inside the house. There was no dispute by the Crown that you believed an intruder was inside the house.

[14]             It was at that point that you picked up the loaded .22 rifle that was sitting on the piano. You pulled the bolt down, and then, thinking that the intruder was coming towards you, you fired. At the time you believed Mr Taylor still to be upstairs, and looking out the upstairs windows to see what was happening.

[15]             As it turned out, Mr Taylor had come downstairs. The shot that you fired into the darkness hit Mr Taylor in his left arm. The bullet went through his arm, through his ribcage, and into his heart, causing his death. That your shot hit Mr Taylor, and the fatal trajectory of the bullet, are both extraordinary features of what occurred that night.

[16]             Thereafter, you did what anyone would do. You rang the Police. Your calls to 111 made for harrowing listening at the trial. You then turned on all the lights and waited for the Police to arrive. That took a long time given the distance between the nearest Police Station and your location. Even once they arrived, the Police had to ensure the site was safe before an ambulance could come onto the property. Mr Taylor was dead by the time help arrived and you were hysterical. From the outset you admitted you had fired the fatal shot. There was never any dispute about that.

[17]             As I say, those events occurred two years ago. Let me say what has happened since. You spent the first nine months in prison, that is remanded in custody. You have never been in prison before, or even in trouble, and prison would have been a huge shock to you, as of course it is to anyone. By usual calculations, nine months might well equate to an 18 month sentence of imprisonment.

[18]             Then, after nine months in custody, in January 2020 you were released on EM bail on the strictest possible conditions, including a 24-hour, seven day a week curfew. There were no breaches.

[19]             Whilst on EM bail, you were permitted to attend St Marks, a residential rehabilitation facility in the Blenheim area, and you did so for the best part of six months. In a letter to the Court of 7 December 2020, the clinical team leader of the  St Marks programme spoke highly of you and your progress, and it appears clear you have achieved exceptional results. The information before me suggests you started using cannabis at about age 15 — given to you by one of your parents — and you progressed to other drugs from there. Dr Menkes’ very recent assessment — and he is a psychiatrist — is that your drug abuse is now in long term remission, with a low risk of relapse. For someone who started at 15, this is a considerable achievement.

[20]             After St Marks, you resumed EM bail until trial. Again, you complied in full with the same stringent conditions. I also granted you bail between verdict and sentence and, again, there have been no issues with your compliance. So, all in all, looking back, nine months in custody, 13 months on EM bail until trial, and two months since.

[21]             You have also in this intervening period commenced studying, have completed three courses with distinction and there is every expectation that you will continue to study to a much higher level and continue to excel.

[22]             I now wish to say a few words about the trial. The Crown charged you with murder.

[23]             Your defence at trial was self-defence, that is that you acted in the belief you were defending yourself from an attack, and that the force you used was reasonable in the circumstances. The jury rejected that defence. I think the jury must have accepted that you acted in the belief that you were defending yourself but thought the force you used was excessive. From there, the jury obviously decided you did not intend to kill Mr Taylor and nor were you reckless, hence the jury’s verdict of manslaughter.

[24]             In his submissions, Mr Johnstone submitted to me conviction on either murder or manslaughter was likely. With respect to him, in my view there was never any prospect of a jury finding you guilty of murder, and for myself I think the jury’s decision that the force used was excessive must have been finely balanced.

[25]             It now turns out that you offered to plead guilty to manslaughter towards the end of 2020. The initial offer seems to have been made on terms that the Crown did not wish to accept, but had there been an acceptance either of that offer or some modified version of it, this matter would have been resolved towards the end of last year. You would have been sentenced before Christmas and would now be four months into that sentence. The trial would have been unnecessary. Mr Taylor’s family and you would have been spared that ordeal. I note also that Auckland went into a level 3 lockdown again when we were close to the end of the trial. We were the only trial allowed to continue, with a special permission from the Government, because we

were so close to the end of the case. And even that relied on the goodwill of all concerned, including the Court staff, the lawyers, and the jury. But for that, you and the Taylor family would still be awaiting trial.

[26]             Lastly, as I have already indicated, this case has been a tragedy for the Taylor family but it has also been a tragedy for you. You and Mr Taylor appear to have been soulmates and I accept that you would turn back the clock if you possibly could, not for your own sake but because it would bring him back to his family.

Information

[27]I have a wealth of information to assist me today.

[28]             First, I have a report from the Department of Corrections dated 7 April 2021, so completed very recently. Corrections assess you as at low risk of reoffending, of low to medium risk of harm to others, and remorseful for what has occurred.

[29]             Secondly, I have another recent report (also April 2021) from Dr Menkes, the psychiatrist to whom I have already referred. I have the Taylor family’s victim impact statements. I have the lengthy letter you wrote to me, and the many others written on your behalf by friends, family and also by the provider of your tertiary education course. In addition, of course, I have had the submissions of both counsel which have been of great assistance to me.

Sentencing process

[30]Having laid all of that out, I turn now to the sentencing process.

[31]             The first step in the process is to establish what we refer to as the starting point. The starting point is the sentence which reflects the culpability inherent in the offending.

[32]             The second step is to adjust the starting point upwards or downwards by taking into account matters that relate to you personally. It is in that way that I arrive at the end sentence.

Starting point

[33]             So, I turn now to the first stage, which is the starting point. Manslaughter is always very serious offending, because someone — in this case Mr Taylor — has lost their life.

[34]             The sentence imposed must be sufficient to hold you accountable for the loss that you have caused — to Mr Taylor, to Mr Taylor’s family, and to the community generally. It must also be sufficient to denounce your behaviour, and deter others from similar offending in the future. I must also treat you consistently with others, and I am obliged by law to impose the least restrictive outcome appropriate in the circumstances.

[35]             Because manslaughter occurs in a great variety of circumstances, often the best guidance is to be had from considering the starting point in similar cases.

[36]             Crown and defence counsel have referred me to several they contend are similar. The cases to which Crown counsel has referred me include those in which a person killed someone else by firing a gun that they did not know was loaded, or by mistake, or intending to hit something else. The starting points in those cases range from four to six years’ imprisonment.3

[37]             The other group to which the Crown referred me include cases where there had been bad blood or aggression in the lead up to the incident and there was a deliberate pulling of the trigger but no intention to kill. In those cases, the starting points range from five years, nine months to a maximum of seven years, six months.4

[38]             The Crown submits a starting point of six years is appropriate if I take the view you deliberately shot someone you believed to be an intruder. Ms Gray submits a starting point of between four and five years. Where I part company with the Crown is that I think that your case is closer to the first group than the second. I think the

3      R v Fepuleai [2013] NZHC 2204; R v Goldstone HC Auckland CRI-2009-044-10031, 28 May 2010; R v Williams [2013] NZHC 3173; and R v Pira HC Rotorua CRI-2006-063-000329, 13 December 2006.

4      R v Dodd [2018] NZHC 3432; R v Kirk [2016] NZHC 1249; R v Flavell [2014] NZHC 373; and

R v McKee [2017] NZHC 2286.

closest case — and even that is not particularly close — is R v Fepuleai, in which the Court adopted a starting point of four years, six months’ imprisonment.5 That is the starting point I adopt.

Aggravating and mitigating factors personal to you

[39]             This brings me to the second stage in which I am obliged to take account of factors personal to you which might lead to an increase or a reduction to that starting point.

[40]             There is no legal justification for any increase but both counsel are agreed reductions for other matters are required.

[41]             First, prior to trial, as I have said, you had 13 months on EM bail on the strictest of conditions. Crown counsel proposes a three month reduction and defence counsel four months. I consider a defendant who complies to the letter with restrictive conditions of EM bail for 13 months is entitled to a five month reduction.

[42]             Secondly, I am required to take into account the steps you have taken to rehabilitate yourself and further your prospects.

[43]             As I have said, your cannabis use commenced in your teens so you have managed to overcome a longstanding addiction which is a credit to you. I have no doubt this was, and continues to be, hard work and a daily exercise in self-control and self-restraint. I have already referred to your performance on the course and in your studies. It appears that St Marks would welcome you back on their staff. Those steps warrant a 10 month — slightly less than 20 per cent — reduction.

[44]             Notwithstanding Mr Johnstone’s submissions, I am also satisfied that your remorse, on display during the trial on a daily basis, is genuine. Even the Department of Corrections has commented on that in their report. It is not remorse for yourself but, as I have said, for the loss of the life of a much loved son, father, brother, uncle and partner.

5      R v Fepuleai, above n 3.

[45]             I am also required to take into account personal factors. You and Mr Taylor should not have been in the business of growing cannabis. Not only is it an illegal business but, more importantly for today’s purposes, it is a very dangerous business. It puts those involved at risk of the very thing you and Mr Taylor were anticipating — robbery or burglary and, in all likelihood, violence. This obviously worried Mr Taylor, because of his attempts to resolve the threat and the many firearms at hand. I have numerous reports of your upbringing which indicate it fell well short of where it should have been, including, as I have said, your introduction to drugs at the hands of one of your own parents. Given that background, it is not surprising that you became involved in this drug-related enterprise and it would be wrong to ignore that link. So, I am going to combine that with a modest reduction for remorse and give you a discount of six months — a little over 10 per cent — for those two matters combined.

[46]             As everyone in this courtroom has heard me say, you also offered to plead guilty to manslaughter at the end of last year. You offered to plead guilty to the charge of which the jury found you guilty, and to a charge that in my view was a fair reflection of your culpability.

[47]             There is no dispute that this offer must be recognised by some reduction in sentence. The reason a reduction is required is because a guilty plea, if accepted, brings substantial benefits. A trial is avoided, the victims are spared the ordeal and there is a considerable saving in resource. I have already said what would have occurred if the Crown had accepted your offer, or some negotiated version. No trial and you would have been sentenced at least four months ago.

[48]             The Crown says at most a discount of 10 per cent is warranted. Defence counsel submits that at least a discount of that amount is warranted.

[49]             In this case, a greater discount is required. I am satisfied it should be nine months. Indeed, there is a case for an even more substantial discount but that is what I propose to allow.

[50]             These discounts bring me to an end sentence of 24 months or two years imprisonment. That means I am required to decide whether to sentence you to

imprisonment or to a term of home detention. And in making this decision I bear in mind that home detention is equally capable of meeting all relevant principles and purposes of sentencing and that I am obliged by law to impose the least restrictive sentence appropriate.

[51]If I sentence you to a term of imprisonment of around that length — two years

— you will be eligible for a substantial credit for the nine months you spent in custody awaiting trial. You would be eligible for parole very quickly and, as Ms Gray submitted to me several months ago, you are the sort of compliant prisoner who might actually be given it at the first available opportunity. In my view, that would not be a proper outcome — proper for the Crown or for the Taylor family.

[52]             If I sentence you to home detention, I am not required to give you such a substantial credit for the time spent in custody. Also, I am concerned a further period in custody might be a retrograde step for you. I think that is the implication of the closing paragraph of the December 2020 letter from St Marks.

[53]             So this is what I have decided to do. I propose to sentence you to nine months’ home detention, that reduction being to reflect the time in custody, plus 400 hours community work, to be served concurrently with the sentence of home detention.

Sentence

[54]             Please stand. For the manslaughter of Daniel Taylor, I sentence you to nine months’ home detention, and 400 hours community work, that latter sentence to be served concurrently with the sentence of home detention.

[55]Please stand down.

Peters J