R v Webster
[2014] NZHC 3091
•4 December 2014
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 WebsterDate:
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 were holding a cigarette lighter.
[9] The two of you were arguing with Mr Smith. You were accusing him of being a paedophile, which Mr Smith was denying.
[10] Mr Webster, you flicked the lighter twice, some 30 cm from Mr Smith. On the second strike of the lighter, the petrol fumes ignited in a ball of flames, setting Mr Smith on fire. Mr Webster, you tried to pat the fire out, while Mr Periton and Mr Barr attempted to use a fire extinguisher.
[11] Mr Smith himself made the initial emergency call for assistance. At Christchurch Hospital, Mr Smith was able to tell the police that you, Mr Barr, had poured petrol on him and that you, Mr Webster, had set him on fire. He referred to both of you having lighters.
[12] After initial emergency treatment, Mr Smith never regained consciousness. He was transferred to the Burns Unit at Middlemore Hospital and underwent a number of surgeries. Mr Smith received burns to 29 percent of his body, to his face, neck, shoulders, torso, both arms and upper thighs, he suffered a severe lung injury. He died as a result of these injuries a number of days later.
[13] When you were first spoken to by police, both of you denied involvement. Mr Webster, after initially denying having anything to do with it, you subsequently told police that one guy poured petrol all over him and another guy held a lighter out and tried to scare him by lighting it, and that Mr Smith consequently caught fire. You have now formally acknowledged that you struck the lighter, knowing that Mr Barr had poured petrol on Mr Smith, and thereby caused his death.
[14] Mr Barr, you told the first police officer to arrive at the scene that Mr Smith had poured petrol on himself before setting himself alight. You denied any involvement. Subsequently, you claimed that you were unable to remember exactly what had happened, but that you could recall standing in the room holding a can of petrol and being able to smell petrol, which you presumed you had tipped over the deceased. You do not recall having a lighter in your hand, nor do you recall arguing with Mr Smith. You have however acknowledged that you committed an unlawful act by pouring petrol over the deceased in the knowledge that Mr Webster had a lighter.
[15] Mr Barr, you claim that upon realising that Mr Smith had petrol on him, you turned to walk away to get a towel and turn the shower on to help Mr Smith, then the petrol ignited. You stated that you got the fire extinguisher, put the fire out and placed the deceased in the shower, and called 111.
[16] I proceed to sentence both of you on the basis that the two of you in your intoxicated state confronted Mr Smith, making allegations about him which he denied. You, Mr Barr, poured petrol over him, which could only have been for the purposes of threatening to set him alight. You, Mr Webster, were striking the lighter so as to instil fear in Mr Smith and threaten him. The two of you were acting together in that enterprise, and that was the scene which the associate (Mr Periton) saw when he arrived back at the house. As is evident from what happened, it was highly dangerous conduct of which you were both equally a part and equally culpable.
Victim impact statements
[17] You have heard this morning the impact of your offending on Mr Smith’s family, and hopefully an appreciation of their grief and pain as a result of your senseless actions. There is nothing I can add to their personal statements to highlight the stress and great sense of loss they have experienced, except to acknowledge that grief and personal loss. No sentence that I can impose can mitigate that grief.
Pre-sentence reports
[18] I have read the pre-sentence reports and other material which has been filed on your behalf and in support of you.
Mr Barr
[19] Mr Barr, you are 44 years old. Your early life was transient and abuse-filled. From the age of 12 you were a ward of the state and lived in multiple foster homes over an eight year period. As a child you were sexually abused. You left school at
14 and became involved with alcohol and drugs. Despite that difficult early life, you have had periods of reasonable stability. However, prior to this offending, as a result
of a relationship break-up you returned to alcohol and drug use. You have the support of your adult daughter.
Mr Webster
[20] Mr Webster, you have been involved in the youth justice system since the age of 13. You have never maintained any permanent employment and have self- confessed issues with alcohol consumption. You have had a tumultuous childhood, marked by being a witness to and victim of domestic violence, and unstable living arrangements. Behavioural difficulties at school led to expulsion at the age of 14 years, and involvement in youth gangs.
Starting point
[21] There is no tariff sentence for manslaughter. The range of sentence available for such a crime reflects the wide spectrum of circumstances in which manslaughter can be committed.1
[22] In sentencing you today, I am required to determine a starting point for your sentence which will include the aggravating features of your conduct before examining possible mitigating factors that may require adjustment to that starting point.
[23] There are several aggravating features to be considered in relation to your offending which are present to varying degrees:
(a) Premeditation:2
While I accept, as indeed I must, that you did not intend Mr Smith’s death, you purposefully created this dangerous situation. I am satisfied there was a developing animosity between yourselves and Mr Smith which culminated in this confrontation in the bedroom. The act of obtaining the can of petrol and
dousing him was a pre-meditated and deliberate act, as was the threatening of
1 R v Wickliffe [1987] 1 NZLR 55 (CA); R v O’Sullivan CA340/93, 15 December 1993; Solicitor- General v Kane CA154/98, 23 September 1998.
2 Sentencing Act 2002, s(9)(1)(i)
him with the lighter. Inherent in a crime of this nature is, in my view, premeditation.
(b) The extent of the harm caused:3
Intrinsic to manslaughter is the resulting death caused to the victim by your actions. Of itself, it does not constitute an aggravating feature, however, what has to be taken into account and cannot be ignored is the fear and terrible pain which Mr Smith endured before succumbing to his burns. This was not a quick death but an agonising one.
(c) Vulnerability of the victim:4
It is apparent that both you and Mr Smith were significantly impaired by alcohol at the time these fatal events unfolded. Mr Smith was drunk and outnumbered. Both factors have been recognised as being capable of rendering a victim vulnerable.5
(d) Vigilantism:
The two of you were acting out of some belief that Mr Smith had paedophilic tendencies. The police have confirmed that such an allegation was incorrect. It was false. Vigilantism or retribution can operate as a standalone aggravating feature.6 The Crown have cited this aspect as a relevant aggravating factor. While at the root of your actions no doubt, I however am inclined to the view that it is a reflection of the irrationality of your behaviour, fuelled no doubt by your intoxicated state, rather than a case of taking the law into your own hands. I hasten to add that consumption of
alcohol, as a matter of law, provides no excuse or mitigating effect.7
3 Section 9(1)(d).
4 Section 9(1)(g).
5 R v Lunjevich [2012] NZCA 454 at [18]; R v Taueki [2005] 3 NZLR 372 at [31](h) and [31](i).
6 R v Taueki, above n 5, at [31](m).
7 Section 9(3).
(e) Actual and threatened use of violence and a weapon:8
Mr Smith’s death was the culmination of a rising level of hostility and threat of violence towards him. It culminated in him being covered in petrol and threatened with ignition by flicking a lighter in close proximity to him. The combination of the use of the petrol and the exposed flame equates to a threat to use a deadly weapon.9 The threatened level of violence here was extreme. The dangerous situation you created always carried with it potentially fatal consequences. These came to pass as a result of your deliberate actions in creating that very real risk.
[24] I do not consider there are any mitigating features in terms of the offending. I have little doubt that you were shocked by what happened, and you responded as best you could, but, of itself, it does not deserve any discrete credit.
Assessment
[25] As I have already indicated, manslaughter covers a wide variety of circumstances. Having regard to the particular circumstances of your offending which I have identified, the manslaughter of Mr Smith is at the more serious end of the range of culpability. You deliberately created a situation of grave danger and you intended to have Mr Smith fear for his life. The situation is entirely different from an act of skylarking.10 It is that deliberate dangerous conduct which resulted in the all too predictable lethal consequences that is at the heart of your culpability. In that regard, the manslaughter has some parallels with motor vehicle manslaughter cases
where alcohol-fuelled drivers in charge of a dangerous machine, driving recklessly, in disregard for the safety of others, cause death.11 Unlike motor vehicle manslaughter cases however, your dangerous conduct was targeted at an individual victim.12 While you did not intend to set Mr Smith alight, your personal culpability
must be considered very high having regard to the steps that you took to bring about
8 Section 9(1)(a).
9 R v Taueki, above n 5, at [31](d).
10 See R v Schofield HC Auckland S5/01, 24 April 2001.
11 See R v McGrath [2014] NZHC 1583.
12 See R v Christie HC Gisborne CRI-2003-016-006522, 28 October 2004; R v Beaven [2012] NZHC 2969.
this dangerous situation.13 Accordingly, I have concluded that a starting point of nine years imprisonment is appropriate.
Personal aggravating features
Mr Barr
[26] Mr Barr, you have some 60 convictions which include drug-related offending, convictions for violence, and some seven excess breath alcohol convictions. You have previous convictions for the unlawful possession and reckless discharge of a firearm.
Mr Webster
[27] Mr Webster, despite your relatively young age, you have 58 previous convictions. These include assault with a blunt instrument and assault with intent to rob. They do indicate a propensity for violence. The present offending occurred whilst you were remanded on a number of charges.
[28] The Crown has submitted, and indeed the defence have acknowledged, that your previous convictions should result in an uplift of the starting point. I accept that both your previous records do demonstrate previous threatening or risk taking behaviour, however, in my view, the present offending is of a different order and I am not of the view that any increase in the starting point is warranted, notwithstanding your lengthy lists.
Mitigating features
Mr Barr
[29] Mr Barr, you have offered to participate in restorative justice with the family of Mr Smith, and that is to your credit. You have expressed remorse in the pre- sentence report, where you are said to have taken full responsibility. Your counsel has emphasised your willingness to face up to what you have done when interviewed
by police on 29 April, although that was prior to Mr Smith’s actual death. Ms Gray
13 R v Wawatai [2014] NZHC 2374.
has also emphasised your willingness to continue with counselling and seek change to your life. The Crown have acknowledged your efforts, after the petrol ignited, to retrieve a fire extinguisher and call 111. These immediate steps however, in terms of remorse, must be tempered by the comments that you made to police at the time which contained an element of self-justification by your continued reference to Mr Smith as a paedophile and your efforts to blur your involvement.
[30] Ms Gray on your behalf has referred to the difficulties you have dealing with the impact of sexual and physical abuse you experienced in your youth. It is apparent that this played some part in your reaction to Mr Smith – indeed a considerable part - however it provides no excuse. Mr Smith was an entirely innocent party. I do however acknowledge the positive contribution and progress you have made with the Male Survivors of Sexual Abuse Trust, which is referred to in the material that has been provided to me.
Mr Webster
[31] Mr Webster, it is recorded in your pre-sentence report that you accept responsibility for your part in the offending, and I acknowledge that you have sought to be involved in restorative justice. In terms of remorse, you, like Mr Barr, were not immediately candid with police about your involvement.
[32] Your counsel has emphasised your age at the time of the offending. You were
20 years old. I accept that is a matter of some weight. Ms Bailey has also sought to rely on what is described as your diminished intellect and cognitive ability. She has referred to the psychologist’s report which bears on your insight on the effect of using the lighter. I give what weight I can insofar as this personal circumstance is relevant to the offending.
[33] There are therefore a different combination of personal circumstances and mitigating factors which are present to varying degrees in respect of each of you, and which I need to take into account. Accordingly, I allow an 18 month deduction in respect of you, Mr Barr. Mr Webster, having regard to your relative youth which I consider to be a mitigating factor of some importance, I am prepared to extend a deduction of two years.
Guilty plea
[34] The Crown has acknowledged that you are entitled to credit for your willingness to plead to a charge of manslaughter from an early point in time, and that you did so once the murder charge was reduced. Accordingly, I allow a 25 per cent deduction. This results in a credit of 23 months in respect of you, Mr Barr, resulting in an end sentence of five years, seven months imprisonment.
[35] Mr Webster, that results in a 21 month reduction and an end sentence of five years and three months.
Minimum period of imprisonment
[36] Because I am sentencing you to a sentence of more than two years imprisonment, I am required to consider whether you should serve a minimum period of imprisonment. The Crown submits this is an appropriate case for a minimum period of imprisonment. You would be eligible for parole, in the normal course of events, before the elapse of two years. In my view that would not be an adequate sentence having regard to the level of your culpability and the harm that you have caused.
[37] The sentence I impose must hold you accountable for the harm done and it must denounce your conduct. For those reasons, I consider a minimum period of imprisonment of two years, nine months should be imposed in respect of you, Mr Barr, and a minimum period of imprisonment of two years and six months in respect of you, Mr Webster.
Result
[38] You need now to stand, please.
[39] Mr Barr, on the charge of manslaughter, I sentence you to a term of five years, seven months imprisonment with a minimum term of imprisonment of two and a half years.
[40] Mr Webster, on the charge of manslaughter, I sentence you to a term of five years and three months imprisonment with a minimum term of imprisonment of two years and three months.
[Recalled at 12.57 to clarify minimum term of imprisonment]
[41] Counsel, I apologise for the inconvenience of having to drag you back to Court to correct the imposition of the formal sentence, and to Mr Barr and Mr Webster I apologise also for the uncertainty as to the final sentence imposed.
[42] In the body of my sentencing remarks I referred to the imposition of a minimum period of imprisonment of two years, nine months in respect of you Mr Barr, and Mr Webster in respect of you an imposition of a minimum period of imprisonment of two years and six months. Those are the minimum periods of imprisonment that I intended to impose. So, in correction of the formal sentence that I imposed at the conclusion of my sentencing remarks earlier this morning, I formally sentence you as follows. Mr Barr, on the charge of manslaughter I sentence you to a term of five years, seven months imprisonment with a minimum term of imprisonment of two years, nine months. Mr Webster, on the charge of manslaughter I sentence you to a term of five years and three months imprisonment with a minimum term of imprisonment of two years and six months.
[43] You may stand down.
Solicitors:
Raymond Donnelly & Co, Christchurch
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