R v Smith [2014] NZHC 2091 (29 August 2014)

Last Updated: 5 September 2014

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2010-045-000249 [2014] NZHC 2091

THE QUEEN

v

_{DANIEL ETHAN SMITH}

Hearing:	29 August 2014
Appearances:	A R McRae for Crown CWJ Stevenson and C J Milnes for Prisoner
Judgment:	29 August 2014

_{SENTENCING NOTES OF DUNNINGHAM J}

[1] Daniel Smith, you are for sentence today having been found guilty of manslaughter by a jury at the end of a trial here in Timaru, in July this year.

[2] Now, regrettably, because there had to be a retrial, the events on which you were charged occurred more than four years ago. Both you and your victim, William Lewis, were 16 at the time. Oamaru is a small town and it appears that you and Mr Lewis knew each other from school.

[3] Now rightly or wrongly, Mr Lewis thought you had been spreading rumours about having slept with his ex-girlfriend and he was angry about this. And at around

9.45 pm near Dominos Pizza’s on Thames Street, which is the main street in Oamaru, he confronted you about this. Now he was obviously agitated and tried to goad you into a fight and we heard evidence from a reliable member of the public as to this. You did not take up this challenge. You walked away saying that your Dad

_{was waiting for you at home and you had to go to work tomorrow.}

R v SMITH [2014] NZHC 2091 [29 August 2014]

[4] A short time later Mr Lewis was picked up in a vehicle by friends and they drove around looking for you. They met up with you about five minutes later on the corner of Thames and Torridge Street. You continued walking along Thames Street and into Exe Street while Mr Lewis continued to try and initiate a fight with you. Mr Lewis’s friend, Donovan Smith, followed the two of you into Exe Street, and taunts were shouted at you and issues were escalating. You did end up with your back to the bonnet of a parked car facing Mr Lewis.

[5] At that point Mr Lewis grabbed your hoodie and pulled it down about your elbow. You then straightened your hoodie, extracted the knife you were carrying in your jeans pocket and stabbed Mr Lewis three times in the back. As we have heard today those wounds were inflicted with at least moderate force according to the pathologist, but in any event, sufficient force to chip a bone in the victim’s spine. The wounds varied in length from 12.5 to 15 centimetres and one punctured the aorta artery causing fatal bleeding. You then ran off along Exe Street, stopping briefly at the home of an associate, where you threw the knife away. When he would not take you in to his house, you continued on to your home where police subsequently located you.

[6] And you initially claimed you had been at home all night and had nothing to do with the death of Mr Lewis.

[7] Your subsequent explanation is that you acted in self defence. As your lawyer puts it, you were a 16 year old youth walking home, you were harassed and threatened and, when things came to a head in Exe Street and you were backed against a car, you responded defensively. Your lawyer says that is supported by your comments immediately afterwards to Adam Caudwell at the house further down Exe Street when you said the guy had taken a swing at you and you had stabbed him.

[8] The Crown, however, says the jury rejected the issue of self defence outright, but was left with a reasonable doubt as to murderous intent. In rejecting any self defence aspect of your actions the Crown points to the evidence that you first presented a knife and slashed the T-shirt of your victim and it was only after you did that, that you then inflicted the three wounds into Mr Lewis’s back as he was moving

away. In those circumstances the Crown said no real threat existed towards you and that this is supported by text messages to Ms Collins on that evening. In them you sought permission from Ms Collins to fight, sending her a message just before this altercation where you said “can I fight just this once please?”, and when she responded “ok but don’t get hurt please”, you replied “don’t worry about me, I’m strapped”, and you explained that meant you were carrying a knife. Now there may have been an element of boasting in this as your lawyer says, but it does also tell me you were prepared to fight and to have recourse to your knife if you did.

[9] Given the combination of the evidence of your text messages, the forensic evidence as to the cut on the front of Mr Lewis’s T-shirt and the evidence of Dr Sage regarding the three stab wounds in the back, I am satisfied, by some margin, that there was only a limited element of self defence in your actions and the jury sensibly rejected your defence of using reasonable force in self defence.

[10] At best, and I must give you the benefit of the doubt, you were threatened with a punch. You had time to straighten your hoodie and reach for a knife located in your trouser pocket, to present it, cutting Mr Lewis’s T-shirt before you inflicted the fatal wounds. I am satisfied on the evidence that your reaction was prompted as much, if not more, by the goading of Mr Lewis, and your desire to get even with him by embarking on the fight you boasted to Ms Collins about, as it was by self defence.

[11] However, it is clear, from the jury’s verdict, that the Crown had not established murderous intent in the form of recklessness, beyond reasonable doubt. In other words, they could not be sure you appreciated you ran the risk of killing Mr Lewis at the moment you used the knife on him, and I must take that into account in sentencing.

Victim impact statements

[12] Now I have read and we have heard many of the victim impact statements today from William Lewis’s family.

[13] There can be no doubt that they are deeply grieved by the loss of their loved son, grandson and brother. They say things like they are “scarred for life forever” and that “the nightmare has not stopped”.

[14] Probably the most moving statement of all was Jacob’s tribute to the brother he looked up to, but lost. So William was clearly full of life, with dreams and ambitions for the future. His family have a huge sense of loss and anger about the fact that he will not experience that future and they will not have the pleasure of seeing him go through all those expected stages of his adult life.

[15] They are also traumatised by the manner of William’s death; the unexpectedness and the brutality of it. Even after four years, the shock and pain of learning of his death and dealing with it is as real and raw as you have heard today.

[16] Part of the hurt they feel stems from a doubt that you have remorse for what you have done. I say this to you. If you can do one thing which, above all else, would display your remorse and regret, it would be to live a good and productive life from this point forward. That would truly demonstrate that you are sorry for what you have happened on that night and put to bed doubts that you have regrets for what you did. Your family deserve that too. They have been good parents to you, they have supported you through this ordeal and they deserve to have that support rewarded by a change in your behaviour.

Pre-sentence report

[17] I have received an updated pre-sentence report for the purpose of sentencing. Understandably, it repeats some of the relevant background which was available in the pre-sentence report in the first trial, but it updates that to reflect developments over the last three years while you have been in custody, and a recent interview with you.

[18] It addresses your personal circumstances. It records you have a stable home background and a good relationship with your parents. However, it also outlines the behavioural difficulties that you have had, including at school. You exhibited what was described as “extremely oppositional” behaviour to authority. You were

expelled from High School. You demonstrated that behaviour at Te Puna Wai when you were younger and you have continued to demonstrate that behaviour at times in Christchurch Prison.

[19] Now while your lawyer indicated that your recent negative behaviour is actually prompted by the manslaughter verdict and your understandable fear about where you will live and what you will do on your release from prison, it does suggest to me that your lawyer’s confidence that you have matured significantly whilst in prison, may be displaced. I hope I am wrong on that.

[20] The report notes your extensive convictions in the Youth Court, most of which are for property and wilful damage offences but says that you have “very few convictions for violence related offences”. However, based on your record to date, the view is that your likelihood of reoffending is high despite your youth and your lack of conviction history in the adult jurisdiction.

[21] The report recommends a special condition of parole relating to the need for a full psychological assessment and appropriate counselling or treatment. It recognises that a sentence of imprisonment is appropriate, but of course, given the time you have spent in custody, it is likely that you will in due course be eligible for parole and some thought will be needed to be given to the conditions of release to ensure your proper integration back into the community.

[22] So bearing all that background in mind, because I must take that all into account, I now turn to the sentencing exercise itself.

Purpose and principles of Sentencing Act

[23] I have to bear in mind a number of considerations. These include:

(a) holding you accountable for the harm you have done to your victim; (b) promoting in you a sense of responsibility for, and acknowledgment

of, that harm;

(c) denouncing the conduct in which you were involved;

(d) deterring others from committing the same or a similar offence; (e) but also assisting you in your rehabilitation and reintegration.

[24] I must also take into account the principles of sentencing. These include:

(a) taking into account the gravity of your offending, and the degree of your culpability;

(b) taking into account the seriousness of the type of offence indicated by the maximum penalty prescribed for it;

(c) taking into account the general desirability of consistency in sentencing levels, by looking at comparable sentencing cases;

(d) taking into account any information provided to me about the effect of the offending on the victims; and

(e) imposing the least restrictive outcome that is appropriate in the circumstances.

Starting point for aggravating and mitigating features of the offence

[25] Now you may have heard, that there is no, what we call tariff, or guideline, decisions for the offence of manslaughter. That recognises the fact that manslaughter cases vary very widely in their circumstances and their gravity of offending. Now as was said in the case of R v Kohai:¹

The assessment of the proper appropriate sentence in a particular case must follow on a careful consideration of the culpability of the particular and the personal circumstances of the offender, but always recognising that a life has been lost.

[26] Of course the seriousness of the manslaughter charge is underscored by the fact the maximum penalty is life imprisonment. However, I must consider the facts of this case and the circumstances to impose a sentence which properly reflects the seriousness of the offence and your culpability.

[27] Now I have been helped in this exercise by the wide range of comparative cases which counsel have referred me to. I start with the fact that comparable cases almost always result in a sentence of imprisonment and I consider that, in your case, the sentence of imprisonment is inevitable. In that regard, the Crown has submitted that the decision in R v Taueki,² is of assistance in determining sentence length for cases of manslaughter involving intentional harm. The Crown is careful to observe that Taueki is not always relevant in manslaughter sentencing but here, where you slashed out at your victim before stabbing him three times in the back with force, the

Crown says Taueki does provide useful guidance as to the seriousness of the offending.

[28] Now relevant factors which the Crown says contribute to the seriousness of the offending are that:

(a) it involved extreme violence, pointing out that at least two of the stab wounds were deeper than the length of the blade;

(b) there was a degree of pre-meditation involved demonstrated by the fact you had armed yourself earlier in the evening and you had sought prior permission to fight from your girlfriend;

(c) the seriousness of the injuries involved; and

(d) that you used a weapon, being a 20 centimetre hunting knife.

[29] So by applying the principles in the Taueki decision and noting there were at least four aggravating features, the Crown says this puts it into band 3 which would justify a starting point sentence of between nine and 14 years imprisonment.

However, the Crown goes on to say that, the offender’s culpability also needs to be assessed by reference to comparable manslaughter sentencing, and the Crown goes on to do that.

[30] And you heard Mr McRae discuss the case of R v Edmonds,³ where a 40 year old defendant had been involved in an altercation with another man who would not leave his address, where five stab wounds were inflicted with a knife causing the victim’s death. In that case the defendant alleged he had acted in self defence but accepted the force he had used was unreasonable. The Crown held the case was not far removed from murder. There was a starting point of 10 years imprisonment imposed and with credit for mitigating features, an end sentence of 8 years imprisonment was imposed.

[31] In a case of R v Ames,⁴ a 14 year old was found not guilty of murder but guilty of manslaughter in circumstances where he had consumed significant alcohol and stabbed his victim once in the chest. The Court held that a particularly aggravating feature of the offending was the use of a knife to kill the deceased. In that case a starting point sentence of 8 years imprisonment with a 33 per cent discount for the defendant’s age and indicated guilty plea, led to an end sentence of five years.

[32] The Crown also referred to decisions in R v Eastham,⁵ R v Kaihau,⁶ and R v Olley,⁷ all of which involved manslaughter convictions for stabbing offences. The starting points in those cases ranged from seven to nine years with end sentences, after adjustment, ranging from five years 11 months to eight years and six

months.

[33] Now you have heard that your lawyer disputes that the starting point the

Crown suggests is correct. Instead, your lawyer points to a range of other cases. We begin with the Eastham case that the Crown also referred to, as well as R v Wang,⁸

³ _{R v Edmonds CRI-2009-009-13108, 15 December 2010.}

⁴ _{R v Ames CRI-2008-263-000019, 30 October 2009.}

⁵ _{R v Eastham [2013] NZHC 2792.}

⁶ _{R v Kaihau 2013 [NZHC] 3192.}

⁷ _{R v Olley [2012] NZHC 40.}

⁸ R v Wang [2014] NZCA 251.

R v Kane,⁹ R v Harris,¹⁰ LE v R,¹¹ and Emery v R,¹² which all involve stabbing events, and where the starting point ranged from four to seven years imprisonment.

[34] In my view, I am reluctant to rely too heavily on Taueki to determine a starting point, although it provides useful guidance as to what might be considered aggravating or mitigating factors. I consider I need to be careful too, not to double count aggravating factors by too rigid an application of Taueki. It is more important that the sentence I give is an analogous with other like cases.

[35] So while I accept a limited element of provocation, and of self defence, in the actions of that night, it was clearly excessive self defence. I consider the evidence points to you using the opportunity to extract some revenge on Mr Lewis for his earlier taunts. I am satisfied from the evidence too of Mr Palato who reported you saying after the stabbing “who’s the bitch now?”, that you said this. It is an unusual thing to say and it matches the evidence of Donovon Smith who said that Mr Lewis had been taunting you prior to the stabbing, calling you names like “pussy” and “bitch”.

[36] So taking into account the aggravating features of the offending which include the level of violence and the extent of harm resulting and, to a lesser extent, the level of pre-meditation, but also taking into account, as a mitigating factor, that I cannot exclude that there was at least a modicum of self defence involved, albeit obviously excessive, I set the starting point at 8 years.

Aggravating and mitigating features relating to offender

[37] In terms of aggravating features in relation to you as an offender, the Crown urges me to take into account both your previous youth justice history and your behaviour while on remand.¹³ Youth Court convictions are not considered convictions for the purpose of s 9(1) of the Act, but the anti-social behaviour they are

_{evidence on can be relevant under s 9(4)(a) of the Act, and I do consider they are}

⁹ _{R v Kane Court of Appeal 23 September 1998.}

¹⁰ _{R v Harris High Court Greymouth, 8 April 2011.}

¹¹ _{LE v R High Court, Auckland, 19 August 2004.}

¹² _{Emery v R High Court, Auckland, 13 February 2009.}

¹³ Section 9(4)(a) of the Sentencing Act 2002.

relevant. You have 43 previous Youth Court matters including for common assault, robbery and various dishonesty and property offending and, when you were on remand prior to the first trial, you were removed from Te Puna Wai o Tuhinapo and placed into the youth wing at Paparua Prison, as a result of poor behaviour. Thirty-nine separate incidents were reported in the first eight months. Although you then began to settle down the pre-sentence report refers to recent behaviour problems at prison when you engaged in abusive and offensive language to staff when you did not get your own way.

[38] While your lawyer, as I have already explained, has given reasons for this, it does suggest you have not yet properly learnt to manage your anger and aggressive behaviour. For the record, I have not taken into account the summary of facts contained as attachments 10 and 11 to the Crown’s submissions on the basis that these do not relate to convictions, and do relate to events which occurred now, some

7 and 8 years ago.

[39] A mitigating feature relating to you is your relative youth at the time.¹⁴ I accept that your youth must have an impact on the sentence imposed because it is a relevant consideration under the Sentencing Act and for the reasons outlined in the Court of Appeal decision in Churchwood v R.¹⁵ That decision recognises at least three aspects of age and immaturity which need to be taken into consideration.

[40] The first is that the brain development of young people is ongoing and as a consequence, adolescence may be impulsive, display immature judgment and lack of insight and restraint. The second is to recognise that persons of that age do have a greater capacity for rehabilitation because of the maturing process. The third is that long sentences for young people can be crushing and may make a sentence disproportionately severe. In the present case I accept that your relative youth at the

_{time of offending must be a mitigating factor.}

¹⁴ _{Section 9(2)(a).}

¹⁵ Churchwood v R [2011] NZCA 531.

[41] I do also take into account the fact you offered to plead guilty to manslaughter both prior to your first trial and prior to the retrial. I accept that significant credit should be given to that.

Minimum period of imprisonment?

[42] In terms of a minimum period of imprisonment, the Crown has submitted that a minimum term of imprisonment is warranted in the circumstances of this case. However, you have already served a significant period of imprisonment and in the circumstances I see no utility in imposing a minimum period of imprisonment.

I will now invite you to stand.

Conclusion

[43] Daniel Smith, you heard I began with a starting point of eight years. I uplift that by six months for your significant history of anti-social behaviour prior to the events of 1 April 2010, but also to reflect ongoing negative behaviour while on remand for this offence. I then reduce that sentence by approximately 33 per cent to reflect your youth and your indicted guilty plea.

[44] On my calculations, and I stand to be corrected, you are therefore sentenced to five years nine months imprisonment. I appreciate that you have already served a significant part of that sentence, beginning with when you were sentenced by Fogarty J on 17 June 2011. You will, in time, be eligible for parole as noted in the full pre-sentence report. Work will need to be undertaken upon which to base a detailed release proposal to mitigate against the assessed high likelihood of reoffending which has been identified in that report.

[45] So in conclusion, I can only repeat what I said earlier, which is the best way you can make up for what you have done, and to the people you have hurt by your actions, is to commit to a more settled lifestyle when you are released from prison. I hope you can achieve that.

[46] Stand down.

Solicitors:

Gresson Dorman & Co, Timaru

CWJ Stevenson, Barrister, Wellington