R v Shannon [2012] NZHC 3131 (23 November 2012)

Last Updated: 26 November 2012

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2011-020-3500 [2012] NZHC 3131

THE QUEEN

v

MATT DILLON SHANNON

Hearing: 23 November 2012

Appearances: C Walker for Crown

W Calver for Shannon

Judgment: 23 November 2012

_{SENTENCING REMARKS OF ALLAN J}

Solicitors:

Crown Solicitor Napier

_{G W Calver, Hastings, [e-mail]}

R V MATT DILLON SHANNON HC NAP CRI 2011-020-3500 [23 November 2012]

[1] Mr Shannon, you appear for sentence this morning, on one charge of causing grievous bodily harm with intent, having been found guilty by a jury at your trial in September. The maximum penalty for that offence is 14 years imprisonment.

Background

[2] You turned 17 years of age on 12 August 2011. There was a party at your flat. A great many young people attended. At the party’s height they numbered more than 50. Alcohol was consumed; some of the party guests including you, became intoxicated.

[3] In the early hours of the morning, you and some of your friends, decided that it would be a good idea to pour some petrol on a guest and set the petrol alight. When this scheme was first devised, it appears that no particular victim had been identified. There was some suggestion that a stunt of that type had been depicted in a movie, but there was little evidence about that at the trial.

[4] You obtained a fuel can containing a residual quantity of petrol. The can was already in the flat. You also obtained a shot glass used for drinking spirits.

[5] Mr Calder was singled out as the victim. He seems to have been chosen because he was slumped and apparently insensible, on or near a bed in the flat. You thought he had been drinking heavily. We now know that to be wrong. Indeed, Mr Calder had drunk no alcohol at all. He had been ill for some days prior to the party and had been at home in bed. Someone at the party contacted him and suggested that he come along. Unfortunately he accepted the invitation. But he was still unwell and it is clear from the evidence given at the trial that his apparently comatose condition had nothing to do with alcohol, and everything to do with his illness.

[6] You approached Mr Calder with a supply of petrol and a cigarette lighter. Your evidence was that the petrol was in the shot glass. The Crown case at trial was that it was still in the fuel can. You said you emptied the contents of the shot glass

onto Mr Calder. The Crown contention was that you poured the petrol directly from the can. It is unnecessary to resolve that dispute. Although the shot glass was relatively small, it is obvious from the injuries Mr Calder suffered that the quantity of petrol used was more than minimal.

[7] Having approached Mr Calder, you poured petrol onto the side of his head, onto his shoulder area, and down his side and back. Then you bent down and ignited the petrol vapour with the cigarette lighter. The vapour ignited instantly. Mr Calder suffered immediate injuries which caused excruciating pain. His clothing burnt through and he experienced serious burns to his neck, shoulder and upper back.

[8] You say you believed that he ought to have been able to put out the flames instantly by rolling over. But that explanation is unacceptable. That is because, at the time you ignited the petrol and for some seconds thereafter, Mr Calder was, to your knowledge, held down by three of your friends. He could not escape or take any action to save himself. Ultimately he broke free and ran into the main area of the flat where he sought assistance. One person in particular helped to douse the flames and to tend his injuries, but it must be said that, for the most part, those who were present treated the whole incident as something of a joke and laughed at Mr Calder’s plight. Save for the good Samaritan, and of course Mr Calder, nobody who was at the party comes out of these events with any credit at all.

[9] Mr Calder made good his escape by bicycle, on which he had arrived at the party earlier in the evening. Despite the excruciating pain, he managed to reach home where his mother took matters in hand in a highly capable and praiseworthy manner. He was placed in the shower and medical assistance was sought. He was taken to hospital with third degree burns, and almost immediately admitted to the intensive care unit because of fears that the burns may have damaged his airway.

[10] His recovery was slow and painful and it is by no means complete.

[11] I want to talk for a moment now about the impact of what you did on

Mr Calder, and also on his mother and sister.

Victim impact

[12] Mr Calder has been subjected to a horrifying ordeal. The physical pain has subsided over time and his injuries have largely healed, but of course there is permanent scarring and tenderness. He must be careful about what he wears next to the skin. He cannot expose his injuries to sunlight. These injuries are bad enough, but there is more to it than that. Your attack has left him mentally fragile, distressed, and at times simply unable to cope. He cannot get his head around the attack; why, when he was among friends, was he singled out for humiliation and a terrible ordeal that was greeted with merriment by those about him? He says that recently he has been called “the human torch”. He does not want to be known as the dude who got set on fire. He has lost his self-esteem and finds life difficult to face. Unsurprisingly, he has needed counselling and specialist attention. That is on-going.

[13] Mr Shannon, this is all down to you. In very large measure you have ruined the life of a young man who was completely blameless.

[14] Moreover, as might be expected, a heavy burden has also been imposed on Mr Calder’s mother, and to some extent his younger sister. Mrs Calder has had to cope with her son as he recovers as best he can from his physical injuries, and to help him through periods when he suffered from depression, anxiety and anger. Mr Calder’s sister was 12 years old at the time of the incident. Of course, she also has had to cope not only with the trauma of those early days, but all the problems associated with her brother’s recovery and his continuing fragile mental state.

[15] Remarkably, the Court is told that she has been bullied because her brother was set alight. It might be thought that Mr Calder and his family would receive every kindness and a significant degree of sympathy following these horrific events. It seems however that, on the contrary, Mr Calder and his sister have been picked upon simply because they have become victims. If that is true, then it reflects very poorly on this community. Bullying of that sort in these circumstances is completely inconsistent with the values that New Zealanders hold dear.

[16] I must emphasise Mr Shannon that you are not directly responsible for the shortcomings of others, but it is the Court’s function to urge the members of the local community to treat this family with the care and sympathy to which they are surely entitled.

Pre-sentence report

[17] Mr Shannon, I want now to talk for a minute or two about you and your background. You are now 18 years old but have been living independently since you were 16. Your parents separated when you were aged about 13. For various reasons your father has not been able to provide a great deal of oversight, and your mother recently moved to Australia with your siblings. It appears that for some time your older sister has been your source of family support, and indeed, to some extent your mentor.

[18] Since leaving school, you have been employed as a service station attendant, and more recently took a one year automotive engineering course at EIT. At the time of your remand in custody, you were working at Hastings Demolition. The reports available to the Court suggest you are a reliable and willing worker. That is a promising sign for your future.

[19] You have been in a committed relationship with a young woman for some time. Judging by the letter which she has written to the Court, it appears that she is, and will be, a stable influence in your life.

[20] The Court has also received a number of other letters from both family members and those who have been involved in your working life. They are supportive of you, and reinforce the perception that you have much to offer the community.

[21] But all is not entirely rosy. The pre-sentence report indicates that you had a tendency to engage in binge social drinking at weekends over the period up to the time of the offending. Moreover, you have been using cannabis once or twice a

week right up to the date of your trial in September. Indeed, you acquired cannabis and driving convictions following your apprehension on this charge.

[22] I will come back to that, but for the moment merely comment that the events of this terrible night seem not to have resulted in an offence-free lifestyle.

[23] You have expressed remorse to the probation officer, and have reinforced that by writing letters of apology to Mr Calder and to the Court. That is a step in the right direction, but the extent to which you are truly sorry is uncertain. It seems to me that someone who is completely and truly contrite would not engage in drug- related activities so soon after the event and right up to the eve of your trial. Having said that, I note that you have indicated your willingness to be involved in a restorative justice process if Mr Calder and his family agree.

[24] As at August 2011, you had no previous offences, but of course there are the recent charges I have just mentioned.

[25] The reasons for this offending can be given in one word – alcohol. Most violent offending in this country is perpetrated by people who have had a lot to drink. You were obviously not in a condition to make rational choices and exercise a degree of commonsense; neither were those around you at the party. You say you were egged on and encouraged by a number of them. That is consistent with their reaction once Mr Calder had been set alight. So alcohol is the explanation for the offending, but it can never be an excuse.

[26] I want to refer to the remarks of Hansen J in R v Schofield:1

[47] As a society, we are rightly conscious of the dangers of alcohol on our roads. It is easy to overlook that its disinhibiting effects are an insidious and often unrecognised menace in many other places as well – in our homes, our workplaces and at times celebration. Any place where alcohol flows freely can become an unsafe place, particularly when young people are present. Inhibitions are suppressed, reactions are ill-considered and impetuous, and common sense flies out the window. The behaviour which turned this celebration into tragedy had all of these hallmarks.

[27] I will be returning to the Schofield case soon.

Starting point

[28] Mr Shannon, I have come to the point at which I begin my discussion of the appropriate sentence. Sentencing Judges are bound to have regard to the detailed provisions of the Sentencing Act 2002, and also to take into account previous sentencing decisions in similar cases. So I have only a limited discretion. I must be guided both by the legislation and by what the Courts have said previously. In particular, I must ensure that the sentence I impose sufficiently denounces what you have done, and that it will serve as a deterrent against similar offending. On the other hand, I must do what I can to assist your reintegration into the community.

[29] The first task is to work out what the appropriate sentence should be, taking into account only the offence itself. We call this the starting point. Then, aggravating and mitigating factors are taken into account. Aggravating factors make the case worse, mitigating factors make it less serious. In this case there are no aggravating factors beyond the offence itself, so from the starting point there will be deductions which I will discuss shortly.

[30] But I begin by fixing the starting point. This was a violent offence. Even though you did not touch Mr Calder yourself, your actions caused him grievous bodily harm so the case has to be considered in the light of the guidelines laid down by our Court of Appeal in a case called R v Taueki.2 There, the Court of Appeal identified three offending bands. Band one comprises the least serious cases; band three the most serious, and band two those that are moderately serious. Cases are

placed in an appropriate band by reference to the presence or absence of certain factors which, together, determine the gravity of the offending.

[31] Counsel are not far apart as to the placement of the case within the Taueki bands. Mr Walker says that it falls between the middle and upper end of band two. Mr Calver argues that it falls within the lower end to middle of band two.

[32] Band two is appropriate for offending of this type where there are two or three aggravating features. Here, there are several such features. They include

premeditation, the infliction of a serious injury, an attack to the head, and the obvious vulnerability of the victim, which is perhaps the most significant factor of all in this case. There is also the fact that you were assisted by those who held Mr Calder down, and so in a sense this is a case involving multiple offenders, and that is also an aggravating factor./

[33] I consider that this offence falls at about the middle of band two, which calls for a starting point of between five and 10 years imprisonment.

[34] I need to pause here in order to refer to two previous cases. There is often a great deal of similarity between cases involving violence because, regrettably, serious violent offending is a routine occurrence. But, perhaps unsurprisingly, in the present instance there is very little assistance to be gained from previous cases. I say unsurprisingly because this has been a highly unusual case.

[35] There appears to be no case in which a grievous bodily harm conviction has arisen from a victim having been set alight. But Mr Walker has referred the Court to R v Castle, which is broadly comparable in that it involved an attack at a party, in which a single victim (a young man) was set upon by a group of offenders.3 All were about your age Mr Shannon. The offenders shaved half of the victim’s eyebrows off before violating him by inserting a broomstick covered with Vix

Vapourub into his anus. The case received widespread publicity because the offenders had been in no trouble prior to that, and were highly regarded. As might be expected, alcohol was involved there also. The victim suffered severe injuries, but also, as here, he had to contend with social isolation, embarrassment and stress.

[36] The High Court took a starting point of five years imprisonment, which the Court of Appeal was not prepared to disturb, although it considered that a higher starting point of six to seven years ought to have been chosen.

[37] In that case the charge was sexual violation, although it could just as easily have been of causing grievous bodily harm. I agree with Mr Walker that Castles provides something of a yardstick against which to measure the present case. It is

however to be remembered that it is now 10 years old and there has since been something of a hardening in sentencing attitudes.

[38] The other case is much closer on the facts. It is R v Schofield, which I mentioned earlier. There, the offender and the victims had been attending an office Christmas party. The two victims, a young man and a young woman, were found together in a toilet cubicle. The male was wearing a grass skirt as part of his fancy dress garb. The offender reached under the cubicle door and lit the bottom of the skirt with a cigarette lighter. The skirt ignited; both victims were very severely burnt. The male died several days later. The woman suffered burns to 20% of her body. Although she survived, she experienced very severe, long term physical and emotional injuries.

[39] The offender pleaded guilty to manslaughter and injuring in circumstances where, if the female had died, he would have committed manslaughter.

[40] Hansen J adopted a starting point of three years imprisonment for both charges. There were extenuating circumstances. The male victim was the offender’s best friend. Earlier in the evening, the offender had endeavoured on several occasions to set fire to various grass and straw garments. Each time the flame simply fizzled out immediately, so he had reason to believe that no harm would come to his victims.

[41] Ultimately, the Judge imposed a sentence of two years nine months imprisonment on each charge. Substantial reparation was also offered and ordered. Leave to apply for home detention was granted under an earlier home detention regime.

[42] I mention that case because it seems to be the only instance of a set of facts anything like the present. There is no tariff or guideline for manslaughter. The starting point in that case might be thought to have been lenient. There is a plain distinction between Schofield and this case, in that the offender there had no reason to think that the victim would not realise quickly that he had been set alight and

extinguish the flame. Experiences earlier in the night suggested that the grass skirt would not ignite, or that if it did, it would be a slow process.

[43] In the present case, Mr Shannon, you knew that petrol vapour would ignite instantly. After all, you had worked for some time at a service station. Moreover and crucially, you knew also that Mr Calder was being held down by your friends, not only before you lit the vapour, but for some time afterwards. So he had no opportunity to escape. I consider Schofield to be relevant, but of only marginal assistance. .

[44] I return to the starting point assessment. I place this case in the middle of band two of Taueki and adopt a starting point of seven and a half years imprisonment.

Mitigating factors

[45] Now I turn to mitigating factors – those that justify a reduction in the sentence. There are two principal factors The first is the fact you had just turned 17 years old when all of this occurred. It is now very well established that a young offender may be entitled to a significant discount simply because he or she is young.4

The Courts accept, on the basis of a growing body of scientific evidence, that

adolescents are different from adults in various important respects. It is widely understood that the ability to plan, consider, control impulses and make wise judgments is the last part of the brain to develop. Adolescents are therefore more inclined to take risks. Although they know right from wrong, they often choose to live in an environment and with companions where risk taking and other similar behaviours occur. Moreover, adolescents are more prone to react based on gut

instinct and to engage in impulsive and aggressive behaviour.5

[46] Most of those considerations arise here. Your youth does not absolve you completely from responsibility for what occurred, but in a legal sense you are

regarded as somewhat less culpable than would an adult who engaged in the same behaviour.

[47] Having said that, youth discounts are not simply given automatically or without stint. There may be a future public safety element in the gravest cases. I do not think that public safety issues are engaged here. Indeed, there is nothing to suggest that you will do anything like this again.

[48] But this offending was very serious and it is not possible to allow a radical reduction that is sometimes available where the offending is relatively minor.6 The extent of the discount will depend upon a range of factors, including the nature and circumstances of the particular offending, and the actual age and circumstances of the particular offender.7

[49] In a very recent decision, the Court of Appeal in R v Hall allowed a Crown appeal and substituted a sentence of imprisonment for an earlier sentence of home detention. That was a case of child abuse. The offender was 19 years old, what the Court thought to be at the upper end of what might be considered youthful. The Court thought that a discount of 15% was appropriate, but was not prepared to conclude that the sentencing Judge’s discount of 20%, while generous, was so out of line as to be wrong.

[50] In the present case I propose to allow a discount of a little more than 25% for your youth. You are much younger than was the offender in Hall, and this offence, although grave, was no more serious than in that case. I allow a discount of two years which reduces the starting point to five and a half years imprisonment.

[51] I turn now to the second mitigating factor, which is concerned with your assistance to the police. The Court is told that, a few weeks after your apprehension, you voluntarily made a further statement to the police in which you identified those persons who were said to have been engaged in holding Mr Calder down. You also volunteered to give evidence if they were charged. The Court is now told that

charges have been laid, and you have provided a written undertaking to the police which confirms your continued willingness to give evidence. On the material available to the Court it seems that, without your assistance, the police may have been unable to identify your alleged co-offenders. In circumstances like that, it is well established that a significant discount is available. As a matter of public policy and in the interests of the proper administration of justice, offenders are encouraged to name co-offenders. That encouragement can be taken into account in mitigation in several ways, but in appropriate cases will take the form of a significant sentencing discount. It does not matter that the promised assistance has yet to be provided.

[52] In R v Hadfield a very high discount of 60% was given for co-operation where, without it, four high level drug dealers would not have been identified, nor convicted.8 In Waihape v R a 30% co-operation discount was upheld on appeal.9

The offenders there had been convicted for their role in an internal gang shootout and had given evidence against some of those in the rival faction. In doing so, they risked serious personal danger.

[53] This morning, Mr Calder has indicated to the court you have received threats following publicity attached to the fact you have been prepared to give evidence against your alleged co-offenders. I do not apprehend that the threats are at a level similar to those in Waihape which involved adult gangs. Nevertheless, the threats are to be taken into account. On the other hand, this was serious offending, and your decision to name the alleged co-offenders and give evidence against them must be marked in an appropriate and substantial way. I am going to allow a further reduction of two and a half years from the starting point to recognise the assistance you have proffered to the police, and which you propose to proffer at the forthcoming trial. That produces an end sentence of three years imprisonment.

[54] I want to touch briefly on two further factors which I do not consider warrant a discount. The first is remorse. I accept that, to some extent, you have reached out to Mr Calder by writing a letter of apology to him. You have also formally

expressed your remorse to the Court in the same way. But I do not consider that there ought to be a separate discount on that ground. The Supreme Court in Hessell v R explained that evidence of exceptional remorse must be available before a separate discount can be awarded on that ground.10 There is nothing exceptional in this case. As I mentioned earlier, it is difficult to square your expressed remorse with the commission of criminal offences, including drug offending, in the period leading

up to your trial.

[55] The second factor is concerned with your willingness to plead guilty to count two from a date much earlier than the trial. Count two, which was an alternative count, alleged recklessness rather than intent to cause grievous bodily harm. Mr Calver submits that you ought to have the benefit, at least to some extent, of your indication of a willingness to plead guilty to count two. I disagree. It is true there are some cases in which an early guilty plea to some offences in a long indictment can attract a discount, but that is not this case. My own view is that the jury’s verdict was largely inevitable.

[56] Throughout the trial you maintained that you had no intention of causing Mr Calder any harm, and that you expected him to take steps to put out any fire immediately. You thought he might do this by rolling around. But of course that was impossible, and you knew it was impossible, because Mr Calder was held down by your co-offenders at the time you lit the fire and for some seconds thereafter. The outcome was effectively pre-ordained. Your willingness to plead guilty to count two was therefore, largely academic in my view.

[57] Mr Shannon, I have reached the end of my remarks. It is of course a tragedy in every sense that these events have brought you to this Court today. But an even greater tragedy has befallen Mr Calder, and his family. You are a young man with most of your life still before you. You have made a single terrible mistake for which I am obliged, notwithstanding your youth, to sentence you to a term of imprisonment. I am sure none of this would have occurred but for the fact you had had far too much to drink that night. Unfortunately, that is not a special feature of

_{this case. Most violent offending stems from the over-use of alcohol.}

10 Hessell v R [2010] NZSC 135 at [63].

[58] If you are to make something of your life you will need to avoid further offending. It was disappointing to see that you committed offences in the period leading up to trial. You owe it to yourself and to those who are close to you to do better than that.

Sentence

[59] Mr Shannon, on the count of intentionally causing grievous bodily harm you are convicted and sentenced to three years imprisonment.

C J Allan J