R v Sutcliffe

[2017] NZHC 2882

ORDER SUPPRESSING SECTIONS OF PARAGRAPHS [8], [9], [11] AND [25] OF THE SENTENCE BY ORDER OF THE COURT

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-019-3479 [2017] NZHC 2882

THE QUEEN

v

TIFFANI JADE SUTCLIFFE

Hearing:	23 November 2017
Counsel:	R Douch for Crown K Burroughs for Prisoner
Judgment:	23 November 2017

[REDACTED] SENTENCING NOTES OF WHATA J

Solicitors:           Crown Solicitor, Hamilton

R v SUTCLIFFE [2017] NZHC 2882 [23 November 2017]

[1]      Ms Sutcliffe, you have pleaded guilty to a single charge of manslaughter.1  The maximum penalty is life imprisonment.2

[2]      Before I go further I wish to acknowledge Mr Williamson’s family. You have suffered a terrible loss, for which you have my deepest sympathy.  I also commend you for the strength that you have shown in speaking today.

[3]      Regrettably, I must retell the facts of Mr Williamson’s death, which no doubt will cause you still more pain. But it is required for sentencing purposes.

Summary of facts

[4]      Ms Sutcliffe, you pleaded guilty to the following summary of facts.

[5]      On Tuesday, 30 May 2017, you were at your address, together with your then girlfriend.  You were both drinking, enough to become intoxicated.  Mr Williamson returned home from work and began to drink with you.  You were later joined by another male, Anthony Clegg. He arranged to take possession of a firearm while there. Upon obtaining the firearm he placed it on the kitchen table.

[6]      Subsequently, members of your group consumed GHB, a Class B controlled drug. At some stage, you, your girlfriend and Mr Clegg went into a bedroom with the intention of engaging in group sex.  Mr Williamson came into the bedroom holding the firearm. He presented the firearm to you, at which point you took it from him and pointed it at him. You asked if it was loaded and almost immediately pulled the trigger. He immediately responded to you to say that, of course, it was loaded. At this stage, you were about two metres apart.  The pellets struck Mr Williamson on the right side of his rib cage, beneath his armpit. He sustained unsurvivable injuries and died shortly after.

[7]      You attempted to conceal the firearm by wrapping it in a towel and concealing it under a bush in the driveway, before moving Mr Williamson’s body from the

bedroom to the front step of the address and calling 111 for assistance.  You were

1      Crimes Act 1961, ss 171 and 160(2)(a).

2      Section 177.

arrested and formally interviewed on three occasions. You provided false information as to what occurred at the first interview and at the second interview.  At the third interview, you stated Mr Williamson had pointed the firearm at your head, and you had taken it off him because it was your turn to play with the gun.  You said you did not know it was loaded when you pointed it at him, and did not believe Mr Williamson thought it was loaded either. You emphasised there was no aggression and no attempt to dominate by either of you in using the firearm.

Personal background

[8]      I turn now to your personal circumstances. I have had the benefit of a PAC

report and a report from a psychiatrist, Mr Peter Dean. [Suppressed.]

[9]      Ms Sutcliffe, you are 23 years of age. Your upbringing was generally good. [Suppressed] You finished school at the age of 16 without sitting NCEA exams and, about this time, you attempted to rob a dairy with a knife, for which you served three months’ youth custody.

[10]     You have been in a number of relationships and, at one stage, had a long-term relationship with a female partner who, tragically, committed suicide.  It also appears that you have smoked cannabis for much of your life and used various substances about once a month, including methamphetamine, prescription medication and GHB.

[11]     You have been previously diagnosed with depression and anxiety, and present with features of post-traumatic stress disorder of a mild to moderate degree. But your symptoms have improved during the course of your remand.  The psychiatric report says  you have reached a stage in your life where you  are ready to address the [Suppressed] abuse, which you have previously blocked out, and to make changes to your future trajectory.

[12]     The PAC report supports this observation. Your behaviour has been described as excellent, in contrast to your initial interactions with the police.  It is said you have expressed regret for this and that you were in shock. You have also conveyed sincere remorse that your actions led to the death of the victim, who you described as a close friend and as “really good to you”.   The PAC report also notes you have taken

responsibility for your behaviour, describing it as a series of “dumb choices”.  The report says that you have demonstrated a consistent, pro-social maturity during remand and that you have been respectful to Corrections staff.  You have also been engaging in weekly counselling and intend to take courses that are available to improve yourself. Despite the profound consequences of the current conviction, you are assessed as presenting a low risk of re-offending.

Victim impact statements

[13]     I have had the benefit of victim impact statements from Mr Williamson’s mother, step-father and brother. They describe the pain, anger and devastating loss caused by your actions. They note Mr Williamson had recently taken steps to turn his life around.  They refer to the contribution that he made to others, particularly the needy, and they also note that his passing had taken away his chance to re-connect to his children.

Sentencing principles

[14]     I turn now to fix sentence. I do so having regard to the purposes and principles of sentencing and to sentences handed down for comparable offending.

[15]     The following aggravating features are present in your offending:

(a)       there was a high level of recklessness;

(b)the harm caused was significant (though I acknowledge that this is an inherent part of the manslaughter offending); and

(c)       you did not immediately seek help; rather, you took steps to conceal the offending.

[16]     I have also carefully assessed the relevance of your alcohol and drug use. Ultimately, I consider this factor is neutral. The gun was brought to you unrequested. Your actions  were spontaneous,  undoubtedly affected by  your drug and  alcohol

consumption. While not a mitigating factor, I think it would be wrong to treat it as an aggravating factor.

[17]     Against this background, in fixing a starting point for your sentence, I have considered a number of sentences which involved similar offending, namely involving reckless discharge of a firearm causing death.3   In four of these sentences a starting point of four to five years was adopted.

[18]     In  R  v  Gideon,  for  example,  Mr  Gideon  and  his  brother  were  taking photographs of each other holding a sawn-off shotgun. Mr Gideon aimed the shotgun from his hip at his brother with his fingers inside the trigger guard.  The shotgun unexpectedly discharged and the victim died. A starting point of four and a half years’ imprisonment was adopted.

[19]     Similarly, in R v Sanft, Mr Sanft discharged his firearm at his young daughter from close range. A starting point of five years was adopted there.

[20]     Third, in R v Goldstone, the defendant discharged a double-barrel shotgun toward his partner, knowing the gun was loaded.   A starting point of five years’ imprisonment was adopted.

[21]     Finally, in R v Fepuleai, Mr Fepuleai had been drinking with family members at his home. A friend, Mr Heron, brought around a rifle, and removed the magazine clip before giving it to Mr Fepuleai. Later, Mr Heron reloaded the gun. When the victim arrived at the house, Mr Fepuleai got the gun back from Mr Heron and pointed it at the victim’s chest, pulling the trigger. A starting point of four and a half years’ imprisonment was adopted.

[22]     Returning to your offending, I note that you did not load the firearm, which makes your offending less serious than that in Gideon, Sanft and Goldstone. I accept, however, the offending in Fepuleai is more comparable. Yet it is still more aggravating

because, by comparison, your actions were clearly a spontaneous moment of stupidity.

3      R v Gideon [2015] NZHC 2333, upheld in Gideon v R [2016] NZCA 16, R v Sanft [2017] NZHC

2164, R v Goldstone HC Auckland CRI-2009-044-10031, 28 May 2010, R v Fepuleai [2013] NZHC 2204.

I therefore consider a starting point of four years best reflects the nature of your offending and your culpability.  I must, however, add six months for the steps taken by you to conceal the offending, rather than immediately seek aid.

[23]     Accordingly, the starting point for sentence I adopt is four years and six months’ imprisonment.

[24]     I do not consider your previous offending, while a youth, is relevant.

[25]     Turning to mitigating factors, I consider your remorse to be genuine.  That is plain from the PAC report. You have also written an apology letter to the Court. I also consider the circumstances of your upbringing, including the [Suppressed], drug and alcohol abuse and a clear of lack of structure, combined with your relatively young age, produced a type of recklessness that occurred on the night in question.  This, to my mind, is relevant both to the offending but also to your personal circumstances and your capacity to rehabilitate, given the right mentoring and proper structure.

[26]      It also appears from the PAC report that the offending has had a salutary effect on you; you are now deeply aware of the significance of what you have done and the need to turn your life around.  You are a prime candidate for rehabilitation. You also present no ongoing risk to the public.

[27]     I therefore propose to apply a combined discount of 10 per cent for these factors.4

[28]     Finally, the Crown accepts you are entitled to a full discount for your guilty plea to manslaughter.5  A discount of 25 per cent for this factor is therefore appropriate.

[29]     From a starting point of four years and six months and applying the discounts noted, I fix an end sentence therefore at three years and one month imprisonment.

4      That is comparable with the 13.3 per cent discount provided in R v Sanft [2017] NZHC 2164 for limited remorse, participation in a restorative justice conference and the views of Mr Sanft and the victim’s whānau.

5      Ms Sutcliffe was willing to plead to the manslaughter charge at the first available opportunity, but the taking of the plea was delaying to allow Crown counsel to determine the appropriate charge.

Minimum sentence

[30]     As  to  minimum  sentence,  in  my view,  the  requirements  for  a  minimum sentence are not engaged.  Mr Douch submitted it is necessary for such a sentence to be imposed to deter and denounce this type of conduct.  But this was a one-off act of recklessness with some unusual aspects, namely, that the firearm was in fact brought to you when you were in no fit state to form any judgment about it.  Overall, as the independent reports assess or observe, you pose no greater risk to the community.  A minimum sentence is therefore not required.

Result

[31]     Ms Sutcliffe, please stand.  On one charge of manslaughter you are sentenced to three years and one month’s imprisonment. I assume that the first strike warning was already given. You may stand down, Ms Sutcliffe.