R v Lawson [2012] NZHC 517 (23 March 2012)

Last Updated: 19 April 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-004-19247 [2012] NZHC 517

THE CROWN

v

_{BRENDON LAWSON}

Hearing: 23 March 2012

Counsel: A Longdill for the Crown

G B Morison and D Niven for Mr Lawson

Judgment: 23 March 2012

_{SENTENCE OF WOODHOUSE J}

Solicitors:

Ms A Longdill, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr G B Morison and Mr D Niven, Barristers, Auckland

R V LAWSON HC AK CRI-2011-004-19247 [23 March 2012]

[1] Mr Lawson, as I indicated at the outset, you can remain seated until I come to impose the formal sentence. I do wish to indicate to you at the outset that in my judgment a sentence of imprisonment must be imposed. I will come to the reasons for that.

[2] You are, of course, to be sentenced for manslaughter – the manslaughter of

Adam Starr.

Facts

[3] The facts in outline are as follows. You are a drug addict, as was Adam Starr. You got to know each other at meetings of Narcotics Anonymous.

[4] On 1 March 2010 you and Mr Starr agreed that you would supply him with morphine. You obtained a morphine sulphate tablet that day and you went to his flat. When you got there he had been by himself drinking beer. The two of you consumed diazepam. You then dissolved the morphine tablet in water, put it into a syringe, injected part of the liquid into your own neck and then injected the remaining liquid morphine into Mr Starr’s arm. It is not in issue that this was done with his consent.

[5] You then went outside and spoke for some time on your mobile phone to your girlfriend. You have said that you were outside for around 20 minutes. You say that when you got back inside you found Mr Starr unconscious, or collapsed, under the table where he had been sitting. You tried to revive him with CPR and slapping – his face, presumably – but without success. You say that you thought Mr Starr was dead because of the colour of his lips. Whether he was dead at this point is not known.

[6] You panicked and left the flat. You called your girlfriend and she persuaded you to return and phone an ambulance, which you did, although it is clear enough that there was some further delay and perhaps of some reasonable amount of time. The paramedics found that Mr Starr was dead. As I have said, it is not known when he died precisely.

[7] A post-mortem examination established that Mr Starr died of a drug overdose consisting of alcohol, diazepam and morphine. And, of course, it is the injection of the morphine only which led to the charge against you to which you have pleaded guilty.

[8] One central point of this tragedy – and perhaps the central point – is that the victim was a willing participant, the two of you, as I have said, being drug addicts. But it was nevertheless a serious criminal act and it occurred, of course, with these tragic consequences.

Victim impact statements

[9] Mr Starr’s mother and brother provided victim impact statements. Mr Starr’s brother read his own statement and that of his mother and did so in a measured way and with dignity. Neither of them has sought to avoid the reality of Adam Starr’s problems in life. But that does not in any way diminish the tragedy for them. The impact on them is permanent loss of a son and a brother.

Your personal circumstances

[10] I come briefly to your personal circumstances. You are 41 years old.

[11] The pre-sentence report records that you started taking drugs at around 18 years of age. It appears that you have been addicted to drugs for a long time. You told the probation officer that you had attended residential programmes on occasions in the past but returned to using narcotics. A month or so ago you completed the first stage of a programme run by Moana House in Dunedin. And I have the confirmation of your attending another programme at the St Marks Clinic, I think it is called, for a

12 week period following your arrest on these matters. The programme director at Moana House, in her recent letter to the Court, has advised that Moana House is willing to continue working with you on a long term programme. However, this can only happen if there is a community based sentence of intensive supervision and community detention, or following release from prison on parole. It is not possible to undergo the Moana House programme while on home detention. As I have

indicated at the outset, Mr Lawson, taking into account all matters – some of which I

am still to come to – I am satisfied that there must be a sentence of imprisonment.

[12] You do have previous convictions. The Crown has submitted that these should be taken into account to increase your sentence by around three months imprisonment. I do not agree. There are four drug related offences. One of these was for possession of a stimulant, and this essentially arose out of your arrest for the manslaughter or was associated with it, and you were fined $150. The other offences, in relative terms, were quite a long time ago – in 1998 and 1991. There are also some convictions for dishonesty, but in my judgment these are not relevant and most of these also were in 2000 or earlier.

Starting point

[13] I need to fix a starting point for your sentence. This is a term of imprisonment having regard to the gravity of your offence before taking into account personal factors which might justify an increase or a decrease in that starting point.

[14] The Crown has submitted that the starting point should be between four and a half and five years. Mr Morison on your behalf submits that it should be between three and three and a half years. I have been referred to four broadly comparable cases; that is to say, broadly comparable in their facts. I will simply note the names

without discussing the details of these cases: Slater,[1] Cox,[2] Campbell[3] and Caswell.[4]

Slater, which is a decision of the Court of Appeal in 1998, does not indicate a starting point but, based on the end sentence, it possibly would have been around four years. The starting point in Cox and Campbell was four years. In Caswell it was three years. In all of these cases the offender administered an illegal drug to another person who died. In terms of the gravity of the offence itself, as opposed to personal factors in respect of the offenders, some differences between your offending and the offending in Slater, Cox and Campbell and Caswell can be pointed to, but I

_{am not persuaded that there are material differences – certainly none which would}

justify a lower starting point than the starting point fixed in Slater, Cox and Campbell. The approach to the starting point in Caswell – and as I have indicated to counsel – is not in my judgment sufficiently comparable. I am satisfied that the appropriate starting point for your offending is four years imprisonment.

[15] Ms Longdill, for the Crown, submitted that, in assessing the starting point, regard should be had to your conduct after you found Mr Starr collapsed under the table at which point he may have been unconscious or he may have been dead. I am not persuaded that those matters have any bearing on the gravity of your offending. Your offence occurred when you injected your friend with the morphine. Your conduct when you found him under the table about 20 minutes later would mean, at most, that you could not get credit for taking immediate steps to contact the ambulance. But the absence of a credit in your favour does not result in an increase of the starting point. And those comments apply with additional force to the submission relating to your conduct after the Police investigation commenced.

[16] The matters I have just referred to may have some bearing on any adjustment for personal factors but they have no bearing in my judgment on the gravity of your offence.

Aggravating and mitigating personal factors

[17] Coming to personal factors. There are no personal factors in my judgment justifying an increase in the starting point.

[18] In assessing any reduction there is particular need in your case to find the right balance between different objectives. On the one hand there are the interests of society to hold you accountable for the grave harm that you have done by your act, to denounce your conduct and to seek to deter you and others from committing offences like this. These aspects in relation to you are given some emphasis by some of the comments in the pre-sentence report and in the letter from the director of the Moana House programme so far as they relate to your personality and attitudes and, more specifically, your response to this offence. And I make clear that I am not here referring to remorse. Against those matters I am bound to take into account needs of

rehabilitation and reintegration for you, and Parliament’s direction in the Sentencing Act that the Court must impose the least restrictive outcome that is appropriate in the circumstances. It also needs to be said that rehabilitation is not just for you, but in the interests of the entire community. In relation to rehabilitation I have taken account of your letter to me and the other information that you provided today together with information that I have already referred to.

[19] Having regard to these general considerations, and the specific matters recorded in the information provided, I consider that the starting point should be reduced by six months to three years and six months, before taking account of your guilty plea. You may not see it this way at this stage, Mr Lawson, but in all the circumstances I consider that that is a reasonably generous discount in respect of the matters I have just referred to.

[20] The Crown accepts that you are entitled to a further reduction of 25% for your guilty plea, with 25% being the most that would usually be allowed for a guilty plea. The end result is a sentence of two years and seven months imprisonment.

[21] I have given consideration to whether a sentence could be imposed which would enable you immediately to start the Moana House programme. And Mr Morison in his careful submissions, of course, urged that upon me. I do not consider that there is any proper basis upon which a sentence less than imprisonment could be imposed. However, the Parole Board will be able to assess these matters when considering your release from prison – in particular the desirability of a release condition requiring you to attend the Moana programme, or some other suitable programme. There are further programmes that are – and I am sure will be – available to you in prison.

Formal sentence

[22] Mr Lawson, you should now stand.

[23] For the manslaughter of Adam Starr you are sentenced to imprisonment for two years and seven months.

[24] There is a further count in the indictment, and on that count, the Crown offering no evidence, you are discharged.

[25] You should now stand down.

_{[26] The order for interim name suppression is now revoked.}

Woodhouse J

---

[1] _{R v Slater [1998] 3 NZLR 1 (CA).}
[2] _{R v Cox HC Wellington, CRI-2008-035-549, 5 March 2009, Clifford J.}
[3] _{R v Campbell HC Christchurch, CRI-2008-009-012759, 2 July 2009, Fogarty J.}

[4] R v Caswell HC Wellington, CRI-2009-085-7797, 4 February 2011, MacKenzie J.