R v Towersey

[2019] NZHC 1161

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CRI-2017-085-003294 [2019] NZHC 1161

THE QUEEN

v

CORY ROBERT TOWERSEY

Hearing:	24 May 2019
Appearances:	C C White and C J Boshier for the Crown P H Surridge for the Defendant
Judgment:	24 May 2019

SENTENCING REMARKS OF NATION J

[1]    Mr Towersey, you have pleaded guilty to one charge of manslaughter and one charge of conspiring to defeat the course of justice. You are now before the Court for sentencing.

[2]    You told the probation officer who prepared the pre-sentence report that the victim, Hayley Williams, was your friend and that you had known Hayley longer than you had known Mr Warren.

[3]    With your plea of guilty to a charge of manslaughter, you have acknowledged that you were involved in an unlawful act that caused Hayley’s death. Had you not driven Mr Warren to Ms Williams’ address, it is likely she would never have been killed. Your involvement in what happened on 22 October 2017 has deprived her three boys of all the love and support they could have expected to continue to have from

R v TOWERSEY [2019] NZHC 1161 [24 May 2019]

their mother as they grew up and beyond. It has led to the boys’ grandmother and her partner having the burden of caring for those boys in a way that should never have been necessary. Hayley’s death has and will impact on her mother and others, like her father, and others close to her for the rest of their lives. I express my respect for the way the boys’ grandmother can say, in the context of her and their loss, that caring for those boys is a comfort and a pleasure. But, as she says, that is necessary all because they do not have their mother to care for them.

[4]I need to go through the background to the offending.

[5]    Mr Warren was arrested on 2 October 2017 on a charge that he had indecently assaulted Hayley Williams. Mr Warren was incensed at the charge and on several occasions in October 2017 made comments about how he should just kill Ms Williams. He was due to reappear in Court on 24 October 2017 on the indecent assault charge.

[6]    You were an associate of Mr Warren. On the afternoon of Sunday 22 October 2017, Mr Warren walked to your address in Cobden. You then drove him to the address of another associate, Tony Moore, in Dunollie. I understand that area to be more than eight kilometres from Cobden. As the summary of facts says, during that visit, Moore gave the defendants, that is you and Mr Warren, a loaded .308 rifle which was placed in the boot of your vehicle. You were both at Mr Moore’s address for about half an hour. During that time, Mr Warren talked about his displeasure towards Hayley Williams because of the indecent assault charge against him.

[7]    At 4.00 pm, about two hours after leaving Moore’s address, you drove Mr Warren to the Greymouth address of Hayley Williams. That was approximately 18 kilometres from Dunollie. You parked your vehicle in the driveway behind her car. From the car, you watched and saw what happened, Warren exiting the car and removing the .308 firearm from the boot, semi-concealed beneath a jacket. Warren approached the main entrance. Ms Williams was initially in the house but, hearing the car approach, went to check on a baby who was in a car seat in her vehicle on the driveway. Warren aggressively confronted Ms Williams and demanded that she get in the car. When she refused, he became angry, grabbed her hair and struck her multiple times around the head and face area. Ms Williams cowered and began pleading with

Warren that she would drop the indecent assault charge. You were there and must have been aware of what can only be described as the cold-blooded shooting and killing of Hayley Williams, with her in a defensive position on the drive, having pleaded for her life and telling Warren of the five children who were in the house. He pulled the trigger three times before, on the third time, after checking, there was a round in the chamber and she was shot. She was shot in a way that caused her rapid death. With the shooting, she fell immediately to the ground and suffered torrential blood loss, which again you must have been aware if. One of the children who had seen Warren pointing the gun at his mother, ran to a neighbour’s house for help. Warren returned to your vehicle. At his direction, you drove at speed from the address. About 40 kilometres away, you stopped your vehicle and Warren exited into the bush. You then returned to your home address.

[8]    When first interviewed by the Police, you claimed you had been stood over by Warren, had no knowledge of the firearm and believed you were taking Warren to Hayley’s address to trade whitebait for cannabis oil.

[9]    When re-interviewed on 21 December 2017, you admitted to being at Moore’s address but continued to deny any knowledge of the firearm or knowledge of Warren’s intentions to kill Hayley.

[10]   You have been in custody on remand since 21 December 2017 and pleaded not guilty to a charge of murder.

[11]   Mr Warren separately pleaded guilty to murder and was sentenced to life imprisonment with a minimum period of imprisonment of 17 years.

[12]   On 30 April 2019, the Crown accepted your plea of guilty on a charge of manslaughter. This was on the basis, as referred to in the summary of facts, that you accepted that Warren intended to use the firearm he obtained from Mr Moore to intimidate Hayley but were not aware that Mr Warren had a murderous intent.

[13]   The charge of conspiring to defeat the course of justice arose from communications over the next two months between you and Mr Moore. The two of

you agreed to suppress evidence relating to your involvement in events which led to the murder, including threatening witnesses not to disclose the supply of the firearm to Warren, destroying or hiding cell phones from the Police and counselling witnesses to avoid disclosing information through text messaging.

[14]   Mr Moore pleaded guilty to conspiring to defeat the course of justice and unlawful possession of a firearm. On his sentencing, the Court adopted a starting point of three and half years for the firearm charge and added 12 months to that starting point on the conspiring to defeat the course of justice charge, leading to a total starting point of four years and six months’ imprisonment.

[15]   The maximum penalty for manslaughter is life imprisonment. There is no guideline judgment, that means a judgment from the Court of Appeal setting out what appropriate sentences might be, for manslaughter sentences because of the variability in the circumstances of the offence.

[16]   The maximum penalty for conspiring to defeat the course of justice is seven years’ imprisonment.

[17]The Crown referred to the aggravating features of the offending as being:

i.      the use of a firearm;

ii.    premeditation, as shown by your awareness of the background to Mr Warren’s actions, your involvement in obtaining the rifle at Mr Moore’s address, your driving Mr Warren to Ms Williams’ home, and your acknowledgement that you knew Mr Warren intended to use the firearm to intimidate Ms Williams;

iii.   the fact that you must have known the intention was for a criminal purpose, to intimidate Ms Williams because of the allegations she had made which led to the charge of indecent assault against Mr Warren, so that you must have known Mr Warren was intending to commit a criminal act, ie to try and defeat the course of justice; and

iv.   that you drove away from the address, leaving Ms Williams bleeding profusely and fatally wounded on the driveway outside her home, for her body to be discovered by one of her young children. The Crown submits there was a degree of callousness through your failure to render assistance or to notify authorities.

[18]   The Crown referred to cases which they submitted would be of assistance in arriving at a starting point.1 The Crown suggested a starting point in the vicinity of eight years’ imprisonment would be appropriate for the manslaughter. They suggested an increase in that starting point on the conspiring to defeat the course of justice charge should be 12 months, as was adopted on Mr Moore’s sentencing.

[19]The Crown did not seek any uplift on account of your criminal record.

[20]   The Crown did not suggest any particular discount for a guilty plea but noted this would be a matter for the Court to assess in light of all the circumstances, including the Crown’s willingness to resolve the matter with a guilty plea to manslaughter as early as 2 July 2018. The Crown suggested there might be a small adjustment for totality, as was made for Mr Moore.

[21]   In his submissions, Mr Surridge said you had not willingly associated with Mr Warren before the events in question. I note however that, at the same time, he says there were a number of occasions on which Mr Warren would use you or prevail upon you to drive him about as he had no vehicle. Mr Surridge said that you contend it all started when Mr Warren indicated to you that he intended swapping some whitebait with Hayley Williams for cannabis oil. As you heard, this is what you first told the Police.

[22]   If that is put forward as an explanation for how you came to help Mr Warren as you did, then I reject it. The pre-sentence report says that, when you were asked about the statement in the summary of facts - that you were aware Warren intended to use the firearm to intimidate Ms Williams - you denied that was so. But, you pleaded guilty based on the summary of facts. Mr Surridge in his submissions says the

1      R v Challis [2008] NZCA 470; R v Parker [2012] NZHC 2458; Clegg v R [2011] NZCA 473.

summary of facts had been discussed with you. That summary including the statement as to your awareness of how Warren intended to use the firearm. In any event, you drove from Mr Moore’s address to Ms Williams’ address, knowing of the anger Mr Warren had expressed towards Ms Williams and knowing that he had collected a rifle before going to her address. You must have known his reason for going to her address had nothing to do with exchanging cannabis oil for whitebait.

[23]   Mr Surridge says that, when you parked in the driveway of Ms Williams’ address, you could not see what items Mr Warren had taken from the boot of the car. Through the summary of facts, you accepted that, at Mr Moore’s address, the rifle had been put in the boot of the car. You must have known it was there. With your admitting that you knew Mr Warren intended to use the rifle to intimidate Ms Williams, you must have known that Warren had taken the rifle from the car.

[24]   Mr Surridge says you saw Ms Williams outside her property, you saw Warren suddenly come into view and confront her, and Mr Warren’s sudden physical attack. He says that you put your head in your hands, disbelieving and upset at what you saw. That, in quick sequence, the rifle was used and you were shocked to the core. He submits for you that, when Mr Warren returned to the car, he ordered you to drive off. He claims you were then terrified and felt you too might be attacked, and that you were too afraid and upset to respond in any way other than as you did.

[25]   Mr Surridge in his submissions says you did not know the rifle was loaded when it was picked up from Mr Moore’s address. To the Police however, you denied knowing anything about the rifle before going to Ms Williams’ address. It was in fact loaded when it was given to you and Mr Warren.

[26]   Mr Surridge says that, at worst, this has to be treated as a situation where you knew Mr Warren was going to intimidate or scare Ms Williams by having the gun. Mr Surridge referred to cases mentioned by the Crown and others. On the basis of those cases, he suggested the starting point adopted by the Crown was clearly excessive having regard to your actual offending. He made no submission as to what the starting point should be or as to any discounts that could be applied.

[27]   I sentence you on the basis that you knew before you went to Ms Williams’ address that Mr Warren was extremely angry that she had made a complaint to the Police, resulting in his facing a charge of indecent assault. You must have known that he was the sort of person who could be seriously violent and the sort of person who would say, with his anger towards Ms Williams, that he should just kill her. Through counsel’s submissions, you have referred to the fact and claimed that you did things because you were afraid of Mr Warren. That indicates to me that you knew of his potential for violence. I accept that, with your plea to a charge of manslaughter rather than murder, you must be sentenced on the basis that you helped Mr Warren, as you did, not thinking he actually intended to kill Ms Williams or otherwise have an intention so as to be guilty of murder.

[28]   You are to be sentenced however on the basis that you knew, through driving Mr Warren to different places, that you were assisting him to obtain a rifle, and that he was going to confront Ms Williams with that rifle to intimidate her because of the indecent assault charge he was facing. Because the rifle was loaded, there is no basis on which I can accept you believed the rifle was not loaded. No information has been put before me as to why I should accept that.

[29]   The assistance you provided to Mr Warren, with what you knew he intended to do, was not brief or fleeting. You drove him to two different addresses and over some distance. You were with him for approximately half an hour at Mr Moore’s address where he spoke of his displeasure at Ms Williams because of the indecent assault charge. It was about two hours later that you drove Mr Warren to Ms Williams’ address.

[30]The aggravating features of this offending are as submitted by the Crown.

[31]There are no mitigating factors relating to the offending.

[32]   As to you personally, I accept the Crown submission that your record of offending does not require any uplift in the starting point sentence having regard to the seriousness of that offending. Mr Surridge did not suggest there were any mitigating matters relating to you personally.

[33]   I accept that you are sorry and that, as the pre-sentence report says, you have shown some remorse for Ms Williams and her children. Today I received the letter that you have made available to the Court. Assuming it is correct, before you were remanded in custody you could not read or write, the fact that you have been able to write this letter is impressive and I commend you for that. In that letter, you do speak of your real regret that Hayley has been killed and the children have lost their mother, as you said to the Probation officer.

[34]   But, the pre-sentence report indicates, and in part it has been repeated through the submissions of Mr Surridge today, that you have difficulty accepting and acknowledging that you actually have some responsibility for her death, that you had a role in what happened. The report, as I said, indicates you do not accept that anything you did contributed to Ms Williams’ death. The report says that you are unable to identify what you could have done differently. What you could have done differently was to refuse to drive Mr Warren to collect a rifle and refuse to take Mr Warren from Mr Moore’s address to Ms Williams’ address, knowing that he had a rifle and he was going to confront Ms Williams with it. There is the beginning perhaps of that real acknowledgement in the letter that I have just read today.

[35]   The information before me however indicates that you are probably not the sort of person who would, on your own, have wanted to see Ms Williams subjected to the sort of violence Mr Warren inflicted on her when he first confronted her or that you would want to see her callously shot, as she was.

[36]   You are 39 years of age. Nearly all your previous convictions are for offences of dishonesty or some cannabis offending. None of the cannabis offending has brought a sentence of imprisonment. There were charges of threatening to kill and assault with an instrument in 2003. Not only is that offending somewhat historic, but the sentence imposed was 320 hours’ community work, which suggests it was not regarded as the more serious offending of that sort.

[37]   There is a drug and alcohol assessment report provided from May 2019 that indicates you have used a variety of drugs over your lifetime, including cannabis, methamphetamine, Ritalin and opiates. You used methamphetamine about four

months before the offending for which you are being sentenced and were on methadone at the time of the offending. A pre-sentence report says your offending was not committed in isolation. As such, your friends and associates are an offending- related factor.

[38]   My assessment, based on all the information that was before me, and I have had an involvement with various aspects of the case, both against you and against Mr Warren and, to a lesser extent Mr Moore, my assessment is that, rather than wanting to see Ms Williams hurt, essentially, you showed a weakness of character in agreeing to help someone you must have known could be a real danger to Ms Williams. My assessment is that you demonstrated the same weakness in agreeing with Mr Moore to try to hide or conceal from the Police evidence as to events leading up to Hayley’s death. It is interesting that that was my assessment on information that I was aware of quite independently of the letter you wrote. However, in the letter which, as I say I received today, you say “I know it will not be easy for anyone to forgive me, as I am still upset at myself for not having more courage to stand up for myself, but I’ve always been a push over with low self esteem and Sean knew it and often used that to his advantage”. Your assessment is in fact, to a large extent, the assessment I have also made. But, what you agreed to do did amount to serious criminal offending and it resulted in the most serious harm, the death of Hayley Williams.

[39]   In arriving at a starting point for the seriousness of the offending, I have had regard to the sentences in R v McNaughton, which Mr Surridge referred to, where offenders knew a gun was being taken to a situation where there could be violence. Death resulted from that, but the offender was not involved in the actual use of the gun in the way that led to the death of the victim.2

[40]   A starting point of 10 years was adopted in R v Challis, referred to by the Crown.3 I regard the aggravating features in that case to be significantly more serious than here.

2      R v McNaughton [2012] NZHC 815.

3      R v Challis, above n 1.

[41]   In Clegg v R, the Court of Appeal upheld a sentence of eight years and three months’ imprisonment.4 In that case, there were two defendants. One defendant had been convicted of murder, the other of manslaughter. Both defendants had confronted two victims at a particular property, one victim was killed and the other injured when one of the defendants shot at both victims. Mr Clegg was sentenced for manslaughter on the basis that both defendants had formed a joint plan to pursue the two victims and to cause serious violence to one or both of them, if necessary using the rifle to do so. The manslaughter verdict could not have been reached unless the jury was satisfied the plan went beyond merely threatening the victims. Mr Clegg was sentenced on the basis that he knew a probable consequence of their plan was that one of the men would be shot but had no intention that anyone would be killed.

[42]   In R v Parker, another case referred to by the Crown, a starting point of eight years was adopted where the defendant had pleaded guilty to manslaughter.5 She and her partner were drug addicts. The victim had failed to deliver some methamphetamine which they had paid for. They made various threats to him. Ms Parker then lured him to their flat with a plan on both their parts to present him with a loaded firearm to threaten him, intending to enforce the original drug deal. Ms Parker knew that her partner kept a loaded firearm in the laundry. The victim came to the property unarmed. Ms Parker’s partner shot the victim unexpectedly. The Judge considered that she must have known her partner was an addict and, in that condition, he was an erratic and unreliable person who could not be relied upon to stick to the plan. As here, Ms Parker had not tried to help the victim when she knew he was badly wounded. The sentencing Judge said the case had a number of serious aggravating features, particularly the use of violence to enforce a drug deal, premeditation, the use of a loaded firearm and an attempt that the defendant had made to shift blame to an innocent party. The Judge also emphasised the defendant’s central role in the scheme.

[43]   I have considered sentences imposed for manslaughter where the defendant has assisted in the transport of the principal offender to the place where the principal offender killed a person, the defendant knew the principal offender was carrying a weapon and the defendant appreciated the risk of confrontation and assault but was

4      Clegg v R, above n 1.

5      R v Parker, above n 1.

not actually involved in the way the weapon was used that caused the death of the victim. The starting point for the offending adopted in those cases ranged from four to five years’ imprisonment.6

[44]   Mr Towersey, you knew how angry Mr Warren was at the fact he was facing a charge of indecent assault. You knew he was going to use a rifle to intimidate Ms Williams. You must have known that, if he was going to use a rifle to threaten her, there was then a risk of there being a confrontation where she could be seriously hurt. You were not involved in the way the firearm was actually used but you provided real assistance to Mr Warren in making it possible for him to obtain the rifle from Mr Moore and in driving him to the address where he was going to use it. That assistance has resulted in Ms Williams’ death.

[45]   I consider an appropriate starting point to reflect the seriousness of the offending is five years’ imprisonment.

[46]   The conspiracy to defeat the course of justice is for separate offending. Your involvement in that offending occurred after you knew Ms Williams had been killed. I have regard to the starting point sentence for manslaughter, a more serious charge than Mr Moore faced. I am also standing back and considering totality. On that basis, I increase the starting point for both offences by six months to five and a half years.

[47]   There should then be a discount for your guilty plea. Had there been an early guilty plea, a discount of 25 per cent would have been appropriate. I accept the Crown would have accepted a plea of guilty to a manslaughter charge in July 2018, and you and your counsel were informed of that. So, the actual plea of guilty was entered late, only on 30 April 2019 when you were due to go to trial on a charge of murder on 6 May 2019. Had you pleaded guilty to the charge of manslaughter in July 2018, all the work required of the Crown in preparing for trial, the anxiety and distress that the family and friends of Hayley would have felt at the prospect of a pending trial, and all the publicity that would have been associated with that, could have been avoided. In these circumstances, and acknowledging that there was still value in your plea of guilty, an appropriate discount for your plea of guilty to the two charges is 15 per cent.

6      R v Innes [2016] NZHC 1195; R v Ashen [2015] NZHC 1884; R v Madams [2017] NZHC 81.

With that discount, the end sentence on both charges comes back to four years and eight months’ imprisonment.

[48]Mr Towersey, please stand.

[49]   On the charge of manslaughter, you are convicted and sentenced to imprisonment for four years and two months. On the charge of conspiring to defeat the course of justice, you are sentenced to imprisonment for six months. That latter sentence is cumulative on the sentence for manslaughter so that the total sentence for both offences is four years and eight months’ imprisonment.

[50]   Manslaughter is a three strikes offence that requires me to give you a first strike warning. The warning is this. [Judge gives first warning].

Solicitors:

Raymond Donnelly & Co., Christchurch Mana Law, Paremata.