R V COX HC WN CRI-2008-035-549 [2009] NZHC 266 (5 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                CRI-2008-035-549


                                     THE QUEEN



                                              v



                         DARRYL
DONALD JAMES COX



Hearing:       5 March 2009

Appearances: T Gilbert for the Crown
             P V Paino for the prisoner

Sentencing:
   5 March 2009



                     SENTENCING NOTES OF CLIFFORD J


Introduction


[1]    Mr Cox, you appear for sentence having
pleaded guilty to one charge of
manslaughter, to two charges of producing a class B controlled drug, namely
morphine, to one charge
of consuming morphine and to two charges of theft of
poppies.


[2]    Those charges attract maximum terms of life imprisonment,
14 year's
imprisonment and three month's imprisonment respectively.


The facts


[3]    The facts involved in this matter represent
a personal tragedy for you, but a
tragedy for others as well. The charge of manslaughter relates to the death, from




R V COX HC
WN CRI-2008-035-549 5 March 2009

morphine which you injected, of your partner, and the mother of your two children,
Tina Marshall.


[4]    Ms Marshall's death is therefore a tragedy for you, but not only for you. It is
a tragedy also for your children, her children,
and for Ms Marshall's own family.


[5]    In December 2007 you and Ms Marshall and your children, were living in
Carterton. A boarder
was living with you.


[6]    On 7 December you and your boarder, who is also facing charges in respect
of this matter, saw some
opium poppy plants in a local garden. You came back after
dark and stole some of the plants in order to derive morphine. To administer
the
morphine you acquired two hypodermic syringes from an associate. You and your
boarder returned home and ­ to produce morphine
­ extracted sap from the poppy
plants, and heated the sap. You then each injected yourselves with the morphine.


[7]    The next
day you and your boarder returned to that address and stole more
poppy plants. Again, you derived morphine from those poppy plants.


[8]    This time Ms Marshall said she would like to try some of the morphine that
had been produced. It was agreed there was enough
for the three of you to use. You
acknowledge you discussed with Ms Marshall the obvious risks associated with what
she wanted to
do, including even the possibility of accidental death.


[9]    Your boarder injected himself. Ms Marshall was to inject herself
from the
other needle, which you were then to use. You were going to guide Ms Marshall in
injecting the morphine. Ms Marshall was
however unable to inject herself. She
asked you to help her. You then injected the morphine into her arm. You left the
room to prepare
to inject yourself.


[10]   After a few minutes Ms Marshall began saying out loud she could not
breathe.   You fetched her Ventolin
as you believed she was having breathing
difficulties associated with the asthma she suffered. In fact she was beginning to
suffer
from respiratory arrest due to the effect the morphine was having on her.

[11]   You helped Ms Marshall inhale Ventolin. She then
collapsed onto the floor.
You assisted her to stand up and began to help her outside but she collapsed in your
arms. You placed her
on her back on the floor and commenced CPR whilst telling
your boarder to ring for emergency assistance. You were still doing CPR
when the
emergency services arrived.


[12]   When asked what was wrong with Ms Marshall, you told the emergency staff
that she was
having an asthma attack. You did not mention that she had taken
opium. After several minutes, when Ms Marshall did not respond to
the treatment
for the suspected asthma attack, emergency staff pressed you as to whether there was
something else involved with her
condition. You then told the emergency staff that
she had taken some opium.


[13]   The emergency staff then changed the treatment
to respond to that condition
and rushed Ms Marshall to hospital, where, despite medical efforts, she was later
pronounced dead.


[14]   You later told the
Police, and this is accepted, that you did not intend to kill
Ms Marshall, that she was not supposed to die, and that she had just
wanted to feel
the effects, the "buzz" as you put it, of the morphine.


The sentencing process


[15]   In a very similar case to
this, called R v Slater [1998] 3 NZLR 1, referred to
by both the Crown and your lawyer, the Court of Appeal commented that the Court's
role was to achieve a fair balance between the interests of society in condemnation,
punishment and deterrence, and between the offender's
interests, including the need
to keep sentences of imprisonment as short as possible consistent with promoting the
safety of the
community.       Although that case pre-dates the enactment of the
Sentencing Act 2002, I think those comments appropriately encapsulate
the
principles I should apply under the Sentencing Act in this difficult sentencing
exercise.

Background material


[16]   I have
been provided with a range of background material.


[17]   I start with a report by Wairarapa Addiction Services from January of
this
year. That report notes that you did not want to revisit questions about drug use and
that you were heavily focussed on the
issues you now face. The report notes,
therefore, that the required amount of information for a full report was not able to be
obtained.


[18]   However, based on the full range of information available to it, the Addiction
Services presented a report which describes
earlier extensive use by you of a wide
range of drugs, including cannabis, opiates, hallucinogenic mushrooms, LSD,
ecstasy and methamphetamine.
       At the present time, however, and putting the
incident of the current charges aside, you say that following a period of residential
treatment in 2003 you have achieved greater control over your drug use and that the
only unlawful drug you currently use is cannabis.


[19]   More generally, the report describes your early life as having been chaotic.


[20]   The Probation Service report noted
you had reported that, whilst your
relationship with Ms Marshall had been rough in the past, more recently it had been
the best it
had ever been. You report unsatisfactory relationships with your own
parents, and between you and Ms Marshall's family. The report
writer noted you are
currently caring for your two children, and that you regard continuing that
relationship as being very important
to you. The report writer commented adversely
on your attitude to your offending, indicating ­ in effect ­ that you appeared to be
avoiding responsibility for what had happened. A sentence of imprisonment, and
home detention was not supported.


[21]   Melissa
Marshall, Ms Marshall's mother, has provided a Victim Impact
Statement. In it she notes the effect her daughter's death has had on
her and on her
wider Whanau. She records her anger with you, particularly for failing to tell the
ambulance services that Ms Marshall
had taken morphine. She also has an interest
in the custody of your children, and as Mr Paino has explained, is applying for legal

guardianship or full custody. She is opposed to you receiving a sentence of home
detention.


[22]     You yourself have provided
a signed affidavit and other documentation. I
will refer to that material when I discuss Mr Paino's submissions on your behalf.


Submissions


[23]     As I said, the Crown has referred me to the decision of Slater. I will explain.
Slater was also a case involving
a sentence on a charge of manslaughter where a
young man had injected his young female partner with morphine, thereby causing
her
death. In Slater, the Court of Appeal upheld an appeal against a sentence of four
years imprisonment imposed for that manslaughter,
reducing that sentence to three
years.


[24]     Mr Gilbert noted that in both Slater and here, the offender ­ in your case you
- had suffered a real personal tragedy. You, and the offender in Slater, have similar
criminal histories. In Slater, as here, there was no indication
of intentional infliction
of harm. Both victims had consented to the administration of morphine, and the
emergency services were
summoned. There are therefore considerable similarities
and the case is guidance for me.


[25]     The Crown submits, however, that
there are some important differences
between the factual situation in that case, and that which I must consider here. In
doing that
the Crown reflected that in sentencing you I must set what is known as a
starting point for your sentence that reflects the seriousness
of your offending. That
is the seriousness of what you did. I must then adjust that starting point to take
account of factors personal
to you which might call for a lesser or a higher sentence
than the starting point first identified.


[26]     The Crown has identified
as an aggravating factor of your offending, relative
to that in Slater, your failure to indicate that Ms Marshall had taken morphine
when
the emergency services arrived. You did so only when pressed on the point. The
Crown also suggests that premeditation and your
previous convictions are

aggravating features. As a mitigating factor personal to you, it recognises your
guilty plea and the remorse
you have displayed. In Slater, the offender had pleaded
not guilty and gone to trial.


[27]   The Crown also notes that in Slater,
the offender was given credit for his
relative youth. You are 30 years old, and not therefore entitled to any credit on that
account.


[28]   As I read the Crown's submissions, the Crown proposes a starting point of
between three and a half and approximately five
years, with a significant discount to
be applied for the mitigating factors recognised.


Mr Paino's submissions


[29]   On your
behalf, Mr Paino proposes a sentence short of imprisonment. In
effect, he is asking that I sentence you to home detention. I can
only sentence you to
home detention if I would otherwise have sentenced you to a term of imprisonment
of two years or less, and I
determine that home detention is appropriate in your case.


[30]   In his submissions, Mr Paino placed particular emphasis on the
following two
factors:


       (a)     In his view, the fact that you did not advise the emergency services
               immediately
that Ms Marshall had been injected with morphine
               should not necessarily be regarded as an aggravating factor. In an
               affidavit that you filed commenting on a number of issues, you said
               that you panicked, that you did
think that Ms Marshall was suffering
               from an asthma attack and that you did not try to conceal anything to
      
        do with the drug use that had occurred. Mr Paino emphasises that you
               did not lie.


       (b)     Mr Paino
has also submitted to me that pre-meditation and your
               previous convictions are not aggravating factors.

[31]   
  In terms of what I would describe as personal mitigation, Mr Paino points to
your remorse, and in particular with regards the appropriateness
of a sentence of
home detention, to the role you have in caring for your two children, to the impact on
your children of you being
sent to prison. I accept that there would appear to be a
favourable report from the psychologist in the Family Court to your suitability
as a
parent.     Mr Paino also points to the important fact also (which the Crown
acknowledges) that Ms Marshall had asked you to
inject the morphine.


[32]      Your affidavit has addressed a number of the matters relied on by the
Blenheim Police in opposing
home detention. I will now briefly comment on some
of those matters:


          (a)    I accept, as I think the Crown also has,
that you are remorseful and
                 that you do very much regret the tragedy that has occurred to you,
                
your children, your partner and your partner's family.


          (b)    In terms of the breaches of bail identified, and on the basis of the
             
   material before me, I accept the version of events Mr Paino, in
                 reliance on your affidavit, has placed before
me. In other words those
                 breaches of bail would appear to have been essentially inadvertent.


          (c)   
I note the incident at WINZ, in which you were arrested following
                 complaints you had threatened staff in Blenheim.
You deny this, but I
                 can only comment that if the staff member thought it was sufficient to
                 call
the Police then something would appear to have happened.


          (d)    I note your occasional cannabis use, and the Wairarapa
Drug
                 Addiction Services' assessment of its significance ­ which they did
                 not place a lot of significance
on. However, cannabis remains an
                 illegal drug.

Sentencing discussion


[33]   Based on those remarks I turn now
to the question of the appropriate starting
and end points for a term of imprisonment appropriate to this offending.


[34]   Here,
I think that Court of Appeal decision that I have referred to is helpful,
not only in terms of a comparative point for an end sentence,
but also by reference to
the approach the Court of Appeal took to offending of this nature.


[35]   As noted in Slater, you performed
an unlawful act fraught with inherent
danger and a life was lost as a result. The sentence to be imposed therefore needs to
recognise
those matters, and to hold you accountable, to denounce your conduct and
to deter you, and more significantly others, from engaging
in such conduct.


[36]   I turn to the matters identified by the Crown, and in particular this question of
what you told the emergency
services when they called. Here I regard the fact that
the emergency services were not immediately notified of the involvement of
morphine as, by comparison to the facts in Slater, the absence of a mitigating factor
relating to the offending, rather than the
presence of an aggravating factor in and of
itself. Whilst you may have panicked, the fact remains that prior to this incident you
were aware of the risk, albeit by your assessment perhaps remote, of Ms Marshall's
death as a result of you injecting her with morphine.
In those circumstances, it is at
best surprising that when the emergency services arrived you did not tell them
straight away that
Ms Marshall had been injected with morphine. By reference to
the Court's approach in Slater, you cannot therefore be given as much
credit, as was
the offender in that case, for the assistance you did provide.


[37]   I consider, moreover, that it is relevant
that Ms Marshall was, in terms of the
intravenous use of opiate drugs, a naïve drug user. You, on the other hand, had
considerable
experience in that regard. In my view, this makes your offending more
serious than that considered by the Court of Appeal in the
Slater case.


[38]   I do not consider your previous convictions an aggravating factor. They are
generally not drug related offending,
and have not been sufficiently serious
previously for you to be sent to prison.

[39]   I do not consider there to be any relevant
pre-meditation. Certainly, your
actions in procuring the poppies, making the morphine and injecting Ms Marshall
were all intentional
but not, in my view, reflecting relevant pre-meditation.


[40]   Finally, and as I have noted, you did not act with an intention
to harm
Ms Marshall. She asked you, tragically, to do what you did.


[41]   On that basis, I consider that having regard to the
charge of manslaughter, a
starting point of four years is the appropriate one. I have, in setting that starting
point, also taken
account of the associated offending represented by the four other
charges you face. Although they are relatively incidental to the
lead charge of
manslaughter, some acknowledgement of the additional criminality represented by
those matters, in my view, does need to be recognised.


[42]   Turning now
to mitigating factors personal to you, I acknowledge your guilty
plea. Your guilty plea did come relatively late in the process but
I recognise, as has
been noted earlier in the sentencing process, that a significant part of that delay
reflected issues relating
to the possibility of a sentencing indication. Although you
did not plead guilty at the earliest stage in the process, nevertheless
a reasonably full
discount for your guilty plea is, in my view, appropriate.


[43]   I also recognise your remorse, and the personal
tragedy you have suffered. It
would, however, be surprising if ­ under these circumstances ­ you were not
remorseful.


[44]   I
also acknowledge the role you are currently playing in the care of your
children. It does show you taking responsibility for the
needs of your children that,
following this tragedy, are so acute.


[45]   As I have said however, unlike the offender in Slater,
you are not a youthful
offender and there is no credit on that front.


[46]   Having regard to all these factors, I consider that
an overall discount of 18
months is appropriate. This means that the sentence of imprisonment I consider
appropriate is two and a
half years.

[47]     On that basis you are not entitled to consideration for a sentence of home
detention. I have to comment that,
even if you had been, I am not at all persuaded
that that is an approach that I would have adopted. It is not clear to me that full
time,
solo care of children is compatible with a sentence of home detention, particularly
when you do not have an effective support
network where you live. Mr Paino
suggests that, were home detention to be considered appropriate and things did not
work out in Blenheim,
you could perhaps move to Masterton. I do not consider that
to be a satisfactory basis upon which to order a sentence of home detention.

[48]     Furthermore, I do not think that your background, which I think is relevant
here, makes home detention a suitable option.
You have had considerable difficulty
living within the law and that would also weigh against it.

[49]     I acknowledge that, in
suggesting a sentence of home detention, Mr Paino, on
your behalf, emphasised the importance of your continuing to provide parental
care
for your children. I also recognise that sentencing you to prison will deprive your
children of your parental support for the
time you are in custody. Considered in
isolation, that is clearly not a good outcome. At the same time however, as I have set
out,
when I consider all the matters I must have regard to, I cannot conclude that a
sentence of home detention is appropriate.

[50]
    Therefore, Mr Cox, the sentence I impose on you is two years and six
months' imprisonment.

[51]     There will be concurrent
sentences of six months on the two charges of
producing the Class B controlled drug namely morphine, and a concurrent sentence
of
one month on the charge of consuming morphine, and there will be convictions
and discharges on the charges of theft of poppies.



                                                                            "Clifford J"



Solicitors:     Crown Solicitor, Wellington
for the Crown ([e-mail])
                Paino & Robinson, Upper Hutt ([e-mail])