R v Sparrow
[2018] NZHC 2987
•15 November 2018
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2017-025-001106
[2018] NZHC 2987
THE QUEEN v
DEVIN GEORGE SPARROW
Hearing: 15 November 2018 Appearances:
R W Donnelly for Crown
J M Ablett Kerr QC and J A Westgate for Defendant
Judgment:
15 November 2018
SENTENCING NOTES OF DUNNINGHAM J
[1] Mr Sparrow you are here to be sentenced today because you have pleaded guilty to a charge of being an accessory after the fact to murder.
[2] Before I explain the sentence that I have reached, I need to outline the background facts to the offending. The victim in this matter was Jack McAllister, a 19 year old from Invercargill. In all, eight of you were charged in relation to the murder. Two of the other defendants pleaded guilty to murder before trial, and the jury found another defendant guilty of murder and another of manslaughter. Before the trial you pleaded guilty to the charge of being an accessory after the fact to murder.
[3] Mr McAllister was known to all of you, and there had been ongoing issues between him and some of the defendants in the months before the murder. At some
R v SPARROW [2018] NZHC 2987 [15 November 2018]
time after 10.00 pm on the night of 7 June 2017, six of your co-defendants, including you, met at Natasha Ruffell’s house in Invercargill. A plan was formed for Mr McAllister to be lured to Stadium Southland, where an assault would take place. As arranged, one of the co-defendants, Laura Scheepers, sent a text to Mr McAllister luring him to the stadium carpark on the pretext of an offer of sex. Mr McAllister and a friend of his drove to the carpark to meet up with her. At around 11.00 pm, you were with the other defendants who drove to the stadium. Ms Scheepers was communicating by text with one of your co-defendants, letting them know when both Mr McAllister and his friend were there with her and it was safe to come into the stadium area.
[4] When they entered the stadium you stayed in the car. You have advised police you did not see any part of what occurred during the assault on the deceased. However, two of the defendants, Mr Whiting-Roff and Ms Dickey, began punching Mr McAllister, and Mr Whiting-Roff then took out a knife and stabbed Mr McAllister 14 times while Ms Dickey was still punching him. He eventually managed to stagger back to his car, and he and his friend drove away.
[5] Once the attack ended, the other defendants went back into the car where you had been waiting. You then drove them away from the scene, allowing them at one point to dispose of the knife.
[6]Mr McAllister died later that evening.
Submissions
Crown submissions
[7] You have heard the Crown submissions. They say that in sentencing you I have to take account of the principles of denunciation, deterrence, and rehabilitation. What that means is I have to balance the concepts of punishing you and warning others not to do what you did, with helping you get your life back on track.
[8] The Crown has referred me to other cases involving sentencing someone on this charge.1 The Crown accepts that you were not actively involved in the hiding of the murder weapon as was the case in R v Moala. It says that the most comparable case is R v Afamasaga, because, as here, the defendant was present for, but not involved with the pre-planning. The Crown therefore says that a starting point of nine months’ imprisonment is appropriate.
[9] From that point, the Crown submits that a discount of around 10 per cent is appropriate to reflect your youth and your good character. The Crown also accepts that your intellectual impairment affects both your culpability (that means how responsible you are), and also the relative hardship you would incur if sentenced to prison. It proposes a further 15 per cent discount.2
[10] The Crown also acknowledges that you have spent over a year on electronically monitored bail, and this would justify a further discount. Indeed, it says that the time you have spent on electronically monitored bail “significantly diminishes the need to impose a punitive component in sentencing”. Finally, the Crown agrees that should get a 25 per cent discount for your guilty plea.
[11] Taking all the mitigating features involved in the case, the Crown submits that a sentence of supervision, which focuses on rehabilitation, is appropriate.
Defence submissions
[12] Your lawyer, Mrs Ablett-Kerr, agrees with the Crown’s submissions on all those factors that are relevant to the discounts. She also says I should take into account the fact that you were remanded in custody for two and a half months after your arrest and then you were released on electronically monitored bail. She tells me that during that period, you have not left your parents’ home, except to attend the Invercargill Court or to travel to Dunedin on two occasions to meet with her. She also reminds me that you have complied with all your bail conditions over a long period of time.
1 R v Afamasaga [2014] NZHC 2142, R v Moala HC Auckland CRI-2006-092-461, CRI-2007-404- 28, 12 December 2007 and R v Boskell [2015] NZHC 286.
2 In E (CA689/10) v R [2011] NZCA 13 at [71] it was noted that discounts where mental illness has contributed to offending range between 12 and 30 per cent.
[13] In terms of the seriousness of your offending, your lawyer acknowledges your role in driving the car away from the stadium and allowing the others to dispose of the knife. However, she points out that you did not have any involvement in the car being provided. You did not drive the car to the scene. She also says that you have been consistent in saying that you drove the others away from the stadium only because you had been intimidated by two of your co-defendants and you feared for your own safety. She reminds me of your intellectual impairment and the fact that you had recently been a victim of a stabbing yourself when these events occurred, and I should take into account that you were motivated by keeping yourself safe from physical harm.
[14] She says these factors mean that this case is a bit different from R v Afamasaga and not as serious.3 She says I should adopt a slightly lower starting point than nine months’ imprisonment, and, in terms of discounting factors, she says that your remorse and the challenging two and a half months you spent in custody should be considered. She supports the Crown submission that an end sentence of supervision is appropriate in this case. She says it is important that I focus on your rehabilitation and that I impose a sentence that could give you guidance in relation to your personal skills and your ability to develop healthy and safe social connections.
[15] As well as those submissions, I have the pre-sentence report. It describes you as someone who has severe literacy, numeracy and communication barriers. It says while you are interested in gaining employment or studying, it seems you are unclear where to start. It says you have good family support, particularly from your mother. You also have a child with a former partner.
[16] The report writer considers that you need to develop skills to ensure you do not go back to the lifestyle you were leading at the time of the offending. While the report writer suggests community work as a way for you to do this, I note that that sentencing option is not designed for that purpose, rather it is for the purpose of holding a defendant accountable. I think it would be preferable to find ways for you to do something that is more targeted towards giving you the skills you undoubtedly need.
3 R v Afamasaga, above n 1.
[17] I can only impose a sentence of supervision if I am satisfied that would reduce the likelihood of further offending for you through your rehabilitation and reintegration.4 Having listened to the submissions about your circumstances, including your limited role in the events of that June night, your youth, your good character, your remorse, your intellectual impairment, the time you have spent in custody and on electronically monitored bail, and your prompt guilty plea, I agree that a sentence of supervision is justified and will promote your rehabilitation and reintegration.
[18] While neither lawyer has indicated exactly what period of supervision they thought was suitable, the Sentencing Act requires it to be between six months and one year.5 I consider a sentence of supervision within the midpoint of those two is appropriate.
[19] I can also impose special conditions. You heard me discuss those with Mr Donnelly, and I agree that the conditions that he has suggested should be imposed. They are conditions that will help you find some suitable programmes to work on getting you back into the community.
[20]Mr Sparrow would you please stand.
[21] On the charge of accessory after the fact of murder, I sentence you to nine months’ of supervision. This will be on the standard conditions provided in the Act and on the further special conditions which are as follows:
(a)to attend and complete an appropriate programme/counselling/ treatment to the satisfaction of a probation officer. The specific details of the appropriate programme shall be determined by the probation officer;
(b)not to communicate in any way or associate with any of your co-defendants without the prior written approval of a probation officer.
4 Sentencing Act 2000, s 46.
5 Section 45(2).
[22]Mr Sparrow stand down.
Solicitors:
Preston Russell Law, Invercargill J M Ablett Kerr QC, Dunedin
J A Westgate, Dunedin
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