R v Williams
[2013] NZHC 3173
•29 November 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-092-001921 [2013] NZHC 3173
THE QUEEN
v
ZHIVARGO EDWARD BLAKE WILLIAMS
Hearing: 29 November 2013
Appearances: S L McColgan for Crown
M Dyhrberg for Prisoner
Judgment: 29 November 2013
SENTENCING REMARKS OF LANG J
R v ZHIVARGO EDWARD BLAKE WILLIAMS [2013] NZHC 3173 [29 November 2013]
[1] Mr Williams, you have pleaded guilty to a charge of manslaughter. That charge, as you know, carries a maximum sentence of life imprisonment. You pleaded guilty after I provided you with an indication of the sentence that would be imposed on you if you entered a guilty plea at this stage of the proceeding.1 For that reason, you are largely aware of the sentence you are going to receive and also of the Court’s reasoning in arriving at that sentence. Nevertheless, because the sentence
indication hearing was not the subject of publication, it is necessary for me to set out again the facts that gave rise to your offending.
[2] I add that, in addition to the charge of manslaughter, you have pleaded guilty to a charge of being in unlawful possession of an airgun. That charge carries a maximum sentence of four years imprisonment.
Background
[3] The charges to which you pleaded guilty arise out of a series of events that occurred on Saturday 12 January 2013. On that day, you met with your friend, Mr Townsley, who was ultimately to be your victim, and three other friends in Manurewa. You decided to go into the City, and you then spent the rest of the day in the St Heliers and Northcote areas. Whilst in St Heliers, you and other members of the group were drinking alcohol and smoking cannabis. At some stage whilst you were there, you also produced an air pistol from the glove box from the vehicle in which you had been travelling, and you showed this to Mr Townsley.
[4] After leaving St Heliers you travelled over the Harbour Bridge to Northcote Point, where you continued drinking alcohol. You then went back to the Mt Eden Domain where, again, alcohol was consumed. At about 7.30 pm, you left Mt Eden and commenced the trip back to Manurewa. Before doing so, however, you and your associates stopped to purchase further alcohol.
[5] An incident occurred as your vehicle was entering the southern motorway at the Symons Street on-ramp. As your vehicle entered the on-ramp, it almost collided
with another vehicle that was travelling in a southerly direction on the motorway.
1 R v Williams [2013] NZHC 2610 (Copy attached).
This led to some form of verbal exchange between the occupants of the two cars. Your vehicle then pulled in front of the other vehicle, and your vehicle continued travelling south. When your vehicle reached the Greenlane exit, you reached out of the front passenger seat window and pointed the air pistol back towards the vehicle that had nearly been involved with a collision with your vehicle. Not surprisingly, this caused the driver of the vehicle and the occupant namely, a seven year old boy, to be frightened. You then drove off down the southern motorway to your home address in Manurewa. By this stage, it was about 8 pm, but it was still light and visibility was good.
[6] After they arrived at your address, Mr Townsley and another member of your group went into the garden area and urinated near a boundary fence adjoining some shrubbery. There was a tree stump in the vicinity of where the two boys were standing. At about this point, you picked up an air rifle that another member of your group had with him. You then said to the person from whom you had obtained the rifle, “Dude, watch this”. You looked through the scope on the air rifle and then aimed it in the general direction of where Mr Townsley and the other boy could be seen urinating. You then fired a single shot in that direction. The Crown accepts, however, that you were not deliberately aiming the air rifle at your friend, but rather at a can that had been placed on the tree stump.
[7] Immediately after you had fired the shot, Mr Townsley turned around holding his left side. He said “I got hit”, and stumbled to the ground. You then immediately dropped the air rifle and ran to him saying “I’m sorry, I’m sorry, I didn’t mean to”. An ambulance was then called and, soon thereafter, Mr Townsley underwent surgery. Unfortunately, however, attempts to save him were unsuccessful.
[8] During the subsequent post-mortem examination, a metal slug pellet was
found in Mr Townsley’s heart. This had obviously caused his death.
[9] When the police spoke to you about the incident, you said that you knew that Mr Townsley and his associate were urinating in the area of the boundary fence. You also acknowledged that you should have waited for them to finish before you fired the air rifle. You said that you believed you must have pulled the trigger too fast,
and thereby directed the aim of the rifle away from the can and towards Mr Townsley. You told the police that you knew the air rifle was capable of killing possums and rabbits, but said you did not believe it could kill a human being. You admitted to the police that you had drunk four or five cans of beer over a four hour period, and that you had also smoked a whole cannabis joint earlier in the day at St Heliers.
[10] In my sentence indication remarks, I concluded that a starting point of four years imprisonment was appropriate to reflect the gravity of your offending on the manslaughter charge. In doing so, I considered several cases that counsel had referred me to. I do not see any need to refer to my reasoning process again. Suffice to say that an important issue in this area is that of deterrence. Members of the community as a whole, and young people in particular, need to know that it is simply not acceptable for young people to drink alcohol, smoke cannabis and then fool around with guns. As the present case shows, it can lead to tragic and devastating results.
[11] I have received measured and temperate victim impact reports from various members of Mr Townsley’s family. As in any case where a young person has been taken away from the family in circumstances such as this, the effect of the loss has been devastating for them. They will take many years to come to grips with what you have done. I am heartened to see that you, too, acknowledge the gravity of your offending and say that you, too, will bear a significant sense of loss for the balance of your life.
[12] Issues of deterrence mean that a deterrent sentence needs to be imposed. That was the essential reasoning underlying my decision to select a starting point of four years imprisonment.
[13] I applied an uplift of four months to reflect the fact that you had also brandished the air pistol at the vehicle on the southern motorway. That was a separate incident and needed discrete recognition. Although it was a stupid act, it was also an arrogant act, and caused the other people in the other vehicle to be frightened for their lives.
Aggravating factors
[14] You have a number of previous convictions, but none of them are relevant for present purposes. For that reason, I do not apply any uplift to reflect your previous convictions.
Mitigating factors
[15] I have applied significant discounts to reflect various mitigating factors personal to you. The first of these is that the incidents occurred when you were just
18 years of age. Both incidents can in some ways be attributed to your youth although, undoubtedly, the consumption of alcohol did not help. In addition, I found that, given that this will be your first sentence of imprisonment, you are likely to find it more difficult than would an older offender. For that reason, I allowed a discount of 15 per cent to reflect your age.
[16] I now have the benefit of a pre-sentence report. This indicates that you have grappled with a number of personal issues over the last few years. Unfortunately, it seems clear that you have taken to consuming alcohol as a way of dealing with these issues. This has led to significant behavioural issues that you are going to need to address in the future.
[17] Another issue that is raised by the report is one that you recognise. You accept that you have an issue with anger, particularly when you have been drinking. In the present case, however, I am satisfied that this did not play any part at all in the offending that gave rise to the charges against you. Rather, these incidents involved the stupid and foolhardy use of deadly firearms.
[18] I was satisfied, when giving the sentence indication, that it was appropriate to apply an additional discount for remorse. As I have already said, you are extremely remorseful for killing your good friend whom you had known since your childhood. I applied a discount of approximately five per cent to reflect that factor. This ended in an end discount of approximately 20 per cent, or ten months, before taking into account guilty pleas.
[19] After hearing from both the Crown and your counsel at the previous hearing, I took the view that a discount of around 20 per cent, or nine months, was appropriate to reflect your guilty pleas. Although they did not come at the earliest opportunity, nevertheless they came well before your trial, which was originally scheduled to be held in this Court in May 2014.
[20] The most significant factor about your guilty pleas is that you thereby accepted full responsibility for your offending. In addition, you have saved the State the cost of a trial. More importantly, you have saved Mr Townsley’s family the agony of having to sit through and relive the events that led to the death of their son.
[21] The end result, therefore, is that a sentence of two years seven months imprisonment is to be imposed.
Sentence
[22] On the charge of manslaughter, you are sentenced to two years seven months imprisonment. On the charge of being in unlawful possession of an airgun, you are sentenced to three months imprisonment. Those sentences are to be served concurrently.
[23] Stand down.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:
M Dyhrberg, Auckland
NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT
2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED.
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CRI-2013-092-1921 [2013] NZHC 2610
THE QUEEN
v
ZHIVARGO EDWARD BLAKE WILLIAMS
Date: 8 October 2013
Appearances: S McColgan for Crown
M Dyhrberg and O R Hinze for Accused
Judgment: 8 October 2013
SENTENCE INDICATION OF LANG J
[1] Mr Williams is charged with the manslaughter of Mr Shaun Townsley. Mr Townsley was 18 years at the time of his death and was a close friend of Mr Williams. The maximum penalty for manslaughter is life imprisonment. In addition, Mr Williams is charged with unlawful possession of an airgun. That charge carries a maximum sentence of four years imprisonment. Mr Williams now seeks a sentence indication in respect of the penalty to be imposed on those charges in the event that he was to enter guilty pleas now. He is due to stand trial in this Court in May 2014.
Background
[2] All of the charges arise out of a series of incidents that occurred on Saturday
12 January 2013. On that day, Mr Williams met with Mr Townsley and three other friends in Manurewa. They decided to go into the City, and then spent the rest of the day in the St Heliers and Northcote areas. In St Heliers, the group were drinking alcohol and smoking cannabis. Whilst there, Mr Williams also produced an air pistol from the glove box of the vehicle in which they were travelling and showed it to Mr Townsley.
[3] After leaving St Heliers the group went over to Northcote Point, where they continued drinking alcohol. They then returned over the Harbour Bridge to Mt Eden Domain, where they drank more alcohol. At around 7.30 pm, they left Mt Eden and began travelling back towards Manurewa. They purchased further alcohol before getting onto the motorway to travel south.
[4] As the vehicle carrying Mr Williams and his group entered the southern motorway at the Symons Street on ramp, the vehicle almost collided with another vehicle that was travelling south on the motorway. This led to some form of verbal exchange between members of each vehicle. Mr Williams’ vehicle then pulled in front of the other vehicle, and continued travelling south.
[5] When Mr Williams’ vehicle reached the Greenlane exit, Mr Williams who was sitting in the front passenger seat of the vehicle, leaned his upper body out of the window and pointed the air pistol back towards the vehicle that had nearly been
involved in a collision with Mr Williams’ vehicle. This caused the driver of the other vehicle and his seven year old son to be frightened. Mr Williams and his group then drove off down the southern motorway to Mr Williams’ home address in Manurewa. Although it was about 8 pm by the time the group arrived at Mr Williams’ address, it was still light and visibility was good.
[6] After arriving at Mr Wiliams’ address, Mr Townsley and another member of the group went into the garden and urinated near the boundary fence in a shrubbery area. There was a tree stump in the vicinity of where the two boys were standing. At about this point, Mr Williams arrived and picked up an air rifle that another member of his group had with him. He then said to the person from whom he obtained the rifle “Dude, watch this”. He looked through the scope on the air rifle, and aimed in the general direction of where Mr Townsley and the other boy could be seen urinating. He then fired a single shot in that direction. The Crown accepts that Mr Williams was not deliberately aiming the air rifle at his friend, but rather at a can that had been placed on the tree stump.
[7] Immediately after Mr Williams fired the shot, Mr Townsley turned around holding his left side. He said “I got hit” and then stumbled to the ground. Mr Williams then immediately dropped the air rifle and ran to Mr Townsley saying “I’m sorry, I’m sorry, I didn’t mean to”. An ambulance was then called, and Mr Townsley underwent surgery. Unfortunately, however, attempts to save him were unsuccessful. During the subsequent post-mortem examination a metal slug pellet was found in Mr Townsley’s heart. This had obviously caused his death.
[8] When the police spoke to Mr Williams, he said that he was aware that Mr Townsley and his associate were urinating in the area of the boundary fence. He also acknowledged that he should have waited for them to finish before he had fired the air rifle. He said that he believed that he must have pulled the trigger too fast, and thereby directed the aim of the rifle away from the can and towards Mr Townsley. Mr Williams said that he knew his air rifle was capable of killing possums and rabbits, but did not believe that it could kill a human being. He admitted that he had drunk four of five cans of beer over a four hour period, and that he had smoked a whole cannabis joint earlier in the day at St Heliers.
Starting point
[9] Counsel for the Crown submits that the manslaughter charge warrants a starting point of four to five years imprisonment. He points out that it had several aggravating factors. First, it followed a prolonged session in which Mr Williams and his associates had been drinking alcohol and consuming drugs. It also followed the incident on the motorway, where Mr Williams had acted in an arrogant and aggressive manner by pointing the air pistol at the occupants of the following vehicle.
[10] Counsel for Mr Williams submits that a starting point of three years imprisonment is warranted. She points out that Mr Williams was not aiming at his friend when he pulled the trigger. In addition, she points out that this was not a high- powered rifle as is often the case in sentencing cases of this type. Rather, it was a low-powered air rifle and one that Mr Williams was justified in believing would not be capable of inflicting a fatal wound.
[11] Counsel have referred several cases to me. I consider the most relevant to be R v Goldstone2 and R v Davidson.3 In R v Goldstone, the offender had pointed a firearm at his partner whilst she was aiming a camera in his direction. He knew the firearm was loaded, and his partner was killed when the firearm was accidentally discharged. The sentencing Judge in that case considered that the act leading to the offender’s partner’s death was at the upper end of recklessness, and selected a
starting point of five years imprisonment. In R v Davidson, a hunter using a high- powered rifle mistook his hunting partner for a deer and discharged the air rifle at him. The Judge in that case adopted a starting point of four and a half years imprisonment.
[12] I consider the starting point in the present case should be lower than those selected in Davidson and Goldstone. Having said that, I acknowledge the force of the Crown’s submission that the offending in the present case was aggravated
significantly by the earlier consumption of alcohol and drugs. In addition, it
2 R v Goldstone HC Auckland CRI-2009-044-10031, 28 May 2010.
3 R v Davidson [2012] NZHC 3448.
involved a marked degree of recklessness, because Mr Williams was prepared to point a firearm in the general direction of where he knew Mr Townsley was standing. The fact that Mr Townsley was only eight metres away at the time Mr Williams pulled the trigger means that there was little room for error.
[13] I also accept the Crown’s submissions that issues of general deterrence are important in this case. Although Mr Williams has undoubtedly learned his lesson, the community as a whole needs to be aware that the reckless use of firearms after consuming alcohol and drugs is something that the courts will view sternly.
[14] Taking all of those matters into account, I consider that a starting point of four years imprisonment is appropriate.
[15] There needs to be an uplift to reflect the offending relating to the air pistol. This was a stupid incident, but it caused consternation and fright for the people at whom the pistol was aimed. I consider an appropriate uplift to reflect that offending is four months imprisonment. I am therefore left with an end starting point of four years four months imprisonment.
Aggravating factors
[16] Although Mr Williams has some previous convictions, they are not relevant for present purposes. I therefore add no uplift for previous convictions.
Mitigating factors
[17] Having regard to mitigating factors, I take into account three. First, I accept that Mr Williams was relatively young when this incident occurred. He was 18 years of age, and the circumstances in which both incidents occurred can in some ways be attributed to his youth. In addition, given that this would be his first sentence of imprisonment, he is likely to find it more difficult than would an older offender. I am prepared to allow a discount of 15 per cent to reflect Mr Williams’ age.
[18] It is unusual in a sentencing indication to apply an additional discount for remorse, because that would normally be demonstrated at the sentencing hearing
through the pre-sentence report and other material. Nevertheless, I accept that Mr Williams is truly remorseful. Indeed, it would be unusual if he was not given the fact that he has killed a close friend. That is a factor that will live with him for the rest of his life. I therefore propose to add a further discount of approximately five per cent to reflect this factor. This means that a discount of ten months, or 20 per cent, is to be applied before taking into account guilty pleas.
[19] The Crown points out that the guilty pleas would not be entered at the earliest opportunity, because Mr Williams was charged in January 2013 and approximately nine months have now elapsed. In addition, the Crown submits that it has always had an extremely strong case, and that Mr Williams would not have escaped conviction if he had gone to trial. The Crown relies on Hessell v R4 for its submission that the Court must take a robust view of all the circumstances when fixing the level of discount to be given for guilty pleas.
[20] I propose to apply a discount of around 20 per cent, or nine months, to reflect Mr Williams’ guilty pleas in the event that he were to enter them now. In applying that discount, I accept the Crown’s submissions as to the point at which pleas would be entered and the strength of the Crown case.
Indication
[21] The end result, therefore, is that I indicate a sentence of two years seven months imprisonment in the event that pleas of guilty are entered at this stage. The sentence indication will be open for acceptance until 5 pm on Friday 11 October
2013. Should Mr Williams wish to take advantage of the sentence indication, his counsel should file a memorandum to that effect and the proceeding can be listed for mention in the criminal callover on Wednesday 16 October 2013 at 9 am so that Mr
Williams can be arraigned.
Lang J
4 Hessell v R [2010] NZSC 135.
Solicitors:
Crown Solicitor, Auckland
Counsel:
M Dyhrberg, AucklandO R Hinze, Auckland
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