R v Webster - [2014] NZHC 3091

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-108 [2014] NZHC 3091

THE QUEEN

v

SHAY BARRY WEBSTER AND
JASON ALISTOR BARR

Hearing: 4 December 2014

Appearances:

M Zarifeh and S Jamieson for Crown
K Gray for Accused Barr
S Bailey for Accused Webster

Date:

4 December 2014

SENTENCING REMARKS OF MANDER J

[1] Mr Barr and Mr Webster, you are now formally convicted on the charge of manslaughter.

Three strikes warning

[2] Mr Webster and Mr Barr, I am about to proceed to the imposition of sentence but before I do that I am required under the Sentencing Act to give you what is described as the “three strikes warning”.

[3] Given your conviction, which I have entered on the charge of manslaughter, you are now subject to the three strikes law. I am going to give you both a warning of the consequences of another serious violence offence/conviction. You will also be
provided with a written notice which contains a list of these serious violent offences.

R v WEBSTER AND BARR [2014] NZHC 3091 [4 December 2014]

[4] The warning is this. If you are convicted of any one or more serious violent offence other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If you are convicted of murder committed after this warning, then you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment.

Sentencing

[5] Jason Barr and Shay Webster, you are for sentence this morning for the manslaughter of Terry Smith. Manslaughter carries a maximum sentence of life imprisonment.

[6] Mr Barr and Mr Webster, you have heard the summary of facts that has been read out earlier this morning. It is important that I record the basis upon which I sentence you for the manslaughter of Terry Smith.

[7] In April last year, the three of you were drinking at an address in Christchurch. You became intoxicated. Initially, you were all getting along well. However, it is apparent that at some stage, towards the latter part of the afternoon, relations between you and Mr Smith deteriorated. Your grievance with Mr Smith appears to relate to a mistaken belief that Mr Smith had some sexual interest in children. Earlier a reference had been made by you, Mr Barr, to the effect that Mr Smith had better not touch your grandchildren, they having been at the house earlier in the day with their mother.

[8] An associate, Mr Periton, who had also been drinking at the address but had left, returned in the early evening. When he entered the house, he immediately noticed a strong smell of petrol. On entering one of the bedrooms, he found Mr Smith covered in petrol. You, Mr Barr, were standing next to him holding a petrol can. Mr Webster, you…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Webster

Details

AGLC: R v Webster [2014] NZHC 3091
Case: [2014] NZHC 3091
Decision Date: 4 December 2014

CaseChat Overview and Summary

The case of R v Webster involved Shay Barry Webster and Jason Alistor Barr, who were convicted of manslaughter. The court had to decide on the appropriate sentence for their roles in the death of Terry Smith. The legal issues included determining the appropriate starting point for sentencing, considering aggravating and mitigating factors, and deciding on a minimum period of imprisonment. The court found that the defendants' conduct was highly dangerous and deliberate, with aggravating factors such as premeditation, extent of harm caused, and vulnerability of the victim. Mitigating factors considered included the defendants' expressions of remorse and participation in restorative justice. The court imposed a sentence of five years, seven months imprisonment for Barr, with a minimum term of two years, nine months, and five years and three months imprisonment for Webster, with a minimum term of two years, six months. The court also clarified the minimum terms of imprisonment during the sentencing.

Orders