R v Innes [2016] NZHC 1195 (3 June 2016)

Last Updated: 7 June 2016

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-009-8919 [2016] NZHC 1195

THE QUEEN

v

_{SHAUN ROBERT INNES}

Hearing:	3 June 2016
Appearances:	A Williams for Crown J Eaton QC for Mr Innes
Judgment:	3 June 2016

_{SENTENCING REMARKS OF MANDER J}

[1] Mr Innes, you may remain seated and I will ask you to stand when I formally pass sentence at the conclusion of my sentencing remarks.

[2] You are for sentence this morning for the manslaughter of Tony Lochhead. Manslaughter carries a maximum sentence of life imprisonment. Your co-offender, Jason Baker, was convicted of murder at his trial last year and he was sentenced to life imprisonment with a minimum period of imprisonment of 17 years.

Factual background

[3] It is necessary that I set out the factual basis upon which I sentence you for the manslaughter of Mr Lochhead.

[4] On a Friday night in September 2013 you and Mr Baker drove to Rangiora. At around 9.15 pm you went to the address of Mr Lochhead and his brother, Peter.

R v INNES [2016] NZHC 1195 [3 June 2016]

The two of you had discussed obtaining drugs from this address. Your associate, Mr Baker, carried a hunting knife which you knew he had.

[5] You agreed on a plan. You would knock on the Lochheads’ door while Mr Baker hid outside in the bushes. The purpose of this plan was for you to lure the brothers out of the house.

[6] You knocked on the door and were invited inside on the pretext that you wished to purchase drugs. Having got both Peter and Tony Lochhead’s attention, you then exited the house and ran down the driveway towards the road.

[7] The Lochheads followed you outside onto the driveway. They could see you near the footpath, waving your arms around in what appears to have been an attempt by you to encourage them to follow you. While standing in the driveway, the Lochheads became aware of Mr Baker who had been hiding in a bush nearby.

[8] Mr Baker was known to the Lochheads. This was no doubt the reason why you approached the house alone. Concerned for their safety, the Lochheads rapidly returned to their flat. They were followed by Mr Baker who armed with the knife was demanding drugs. The Lochheads attempted to shut a lounge sliding door to prevent Mr Baker entering. A struggle ensued, with Mr Baker thrusting the knife through the partially open door, attempting to strike the Lochheads. Mr Baker was threatening the occupants, telling them he was going to stab them.

[9] It was during the course of this attack that Tony Lochhead received a fatal knife wound to his upper chest. Peter Lochhead also received cuts to his head and shoulder area and several nicks to the chest. Using a walking stick as a weapon, Peter Lochhead was finally able to strike Mr Baker’s hand causing him to drop his knife, and he fled from the address.

[10] You had no involvement in the struggle to enter the Lochheads’ house. After reaching the footpath you did not return to the property and you did not witness those events. You did not meet up again with Mr Baker. You made your own way on foot, eventually hitchhiking back to Christchurch.

[11] Tony Lochhead, after receiving the fatal stab wound, collapsed in the lounge of his home. Despite the efforts of his brother and a neighbour to administer first aid before emergency services arrived, efforts to revive Mr Lochhead were unsuccessful and he died.

[12] Mr Innes I proceed to sentence you this morning on the basis that you had agreed with Mr Baker to assist him in obtaining drugs from the Lochheads’ address. You knew Mr Baker had a knife. In assisting Mr Baker as you did, you must have appreciated the risk of a confrontation with the occupants of the flat, and one which would likely involve threats of violence and which may result in one or more of the occupants being assaulted. Your role was to provide Mr Baker with the opportunity to carry out the plan which, if necessary, included confronting and threatening the Lochhead brothers. As I say, your task was to lure them outside. Having achieved that objective, that was the end of your involvement.

Victim impact statements

[13] I have received victim impact statements from Peter Lochhead, Tony’s brother, and their niece Jasmine Lochhead. You have heard this morning Ms Lochhead read out her victim impact statement, and you have also heard directly from Mr Lochhead’s sister-in-law, Tracey Ross. You will appreciate the distress and grief that has been caused as a result of Tony’s death. They are left to have to bear the loss of their family member. Ms Lochhead and Ms Ross have shown commendable insight into the need for you to commit to change and to turn away from drugs and crime for good. If you wish the best for them and to do right by them, it requires you to do the best for yourself and for your family, to do so by taking the opportunity to put your life on track and not return to your previous destructive lifestyle which played its part in Mr Lochhead’s death.

Personal circumstances

[14] Mr Innes you are 39 years of age. You have an extensive criminal history, however, you have never previously been convicted for an offence of violence. Clearly, you have struggled with drugs and your offending is associated with your drug addiction which you attribute to being prescribed opiate pain relief after

sustaining head injuries in a car accident in 1994. In 2007 you were placed on a methadone programme, and it appears you managed to live productively and offence-free for several years before relapsing in 2013, when you again began using drugs and became involved in further offending. You attribute this to your removal from the methadone programme at that time.

[15] I have received medical information that this severe car accident in 1994 resulted in you receiving a head injury which has caused you cognitive difficulties and in particular caused you to suffer memory impairment, to suffer from impulsivity, lack of judgment and problems with decision making.

[16] You reside with your partner and your three children who together with your mother provide you with very significant support.

[17] Prior to the trial last year you were remanded in custody, and more recently have been subject to electronically monitored bail. This has resulted in you having now been drug-free for a number of years. You do not consider yourself a violent person, and you say you only went to the address where the offending occurred to obtain drugs.

Starting point

[18] There is no tariff sentence for manslaughter. The range of sentence available for such a crime reflects the wide spectrum of circumstances in which manslaughter can be committed.¹ In sentencing you this morning, I am required to determine a starting point for your sentence which will include the aggravating features of your conduct before examining mitigating factors that may require adjustment to that starting point.

[19] I accept immediately that you had no intention of bringing about Tony Lochhead’s death or to contribute to such a tragedy. Any element of premeditation on your part does not link directly with Mr Lochhead’s homicide. However, the

_{dangerous situation that was created was the result of a plan, albeit one which at}

1. R v Wickliffe [1987] 1 NZLR 55 (CA); R v O’Sullivan CA340/93, 15 December 1993; Solicitor- General v Kayne CA154/98, 23 September 1998.

least from your perspective went wrong. You assisted in bringing about that situation. You knew that Mr Baker was armed with a knife, and in my view you must have had some appreciation of the real risk that Mr Baker could physically threaten the occupants of the house, which intrinsically involved the risk of violence. To that degree there is some element of premeditation, although I accept it is

limited.²

[20] Intrinsic to manslaughter is of course the death of the victim. Of itself it does not constitute an aggravating feature. However, what needs to be acknowledged is that a man has lost his life in sudden and violent circumstances that were entirely avoidable.³

[21] Mr Baker used a hunting knife in his attack, and you knew he was so armed when you agreed to assist him.⁴ A further aggravating feature is that the offending took place in the context of a plan obtain drugs.

[22] In terms of mitigating factors as they relate to the offence itself, your involvement was limited to assisting Mr Baker by getting the occupants outside their flat. That said, and as I have already observed, in so doing you brought about the dangerous situation which exposed them to Mr Baker’s potential violence. You yourself were not involved in the subsequent violence, indeed you were not even present by that stage of the events. I accept your culpability is very significantly less than Mr Baker’s, which is of course reflected in the fact that he was convicted of murder and you have pleaded guilty to manslaughter.

[23] It has been suggested by your counsel that your culpability should be considered as being even less because it may have been that by the time Mr Baker stabbed Mr Lochhead it was for some reason other than to obtain drugs, and that his motivation was more strongly linked to some “history” between the two men. Whatever the position, the fact remains that you knew that Mr Baker was known to the Lochheads, hence the reason why it was you who, as a person unknown to them,

_{was used to lure them outside. In my view, your culpability arises out of your}

² _{Sentencing Act 2002, s 9(1)(i).}

³ _{Section 9(1)(d).}

⁴ Section 9(1)(a).

involvement in creating the dangerous situation which ought to have been obvious from the plan that you had agreed to be part of. I accept that you may have considered the risk of anyone being stabbed as unlikely, if not remote, and that you wanted no direct involvement in violence, however, you were prepared to take the risk of Mr Baker resorting to violent conduct if it resulted in drugs and possibly money being obtained from the Lochheads’ flat.

[24] As I have already acknowledged, once you had played your part and got to the footpath, having succeeded in having the Lochheads follow you outside, you played no further part and made your own way back to Christchurch. There is a suggestion made on your behalf this is consistent with somebody who had no knowledge or appreciation Mr Baker would resort to the use of the knife. The fact that you did not involve yourself further in the events is a factor which reduces your culpability. However, having assisted in creating this situation, the fact that you then literally walked away does not mitigate your conduct up to that point, nor does it diminish the responsibility you have to accept for what then occurred, and which is reflected in the charge to which you have pleaded guilty.

Assessment

[25] I have been referred to a number of sentencing decisions both by your counsel and by the Crown. As I have already indicated, manslaughter covers a wide variety of circumstances.⁵

[26] It has been submitted that it is rare, if not unique, for a person to be convicted of manslaughter based upon the execution of a common enterprise which does not involve an offence of planned violence, as opposed to one of burglary or robbery. The fact that your culpability as a party does not arise from a common enterprise which has as its objective the infliction of violence is a factor to be taken into account. However, I do not accept that it is unique for a person to be a party to

_{manslaughter in a situation where a burglary or robbery goes wrong.}⁶ _{A classic}

⁵ R v Parker [2012] NZHC 2458; R v AJN, Heremaia and Manukau HC Hamilton CRI-2009-019-

9786, 30 September 2010; R v Clarke & Ors HC Rotorua CRI-2019-270-73, 29 May 2009; R v

_{McNaughton & Ors [2012] NZHC 815.}

⁶ R v Parker, above n 5.

example of course is the getaway driver or lookout in the robbery of a bank or a dairy which does not go to plan.

[27] Care must always be taken when seeking to draw parallels between the facts of individual cases, and I accept the circumstances of your offending are relatively unusual. I also accept it was not part of your plan that Mr Lochhead be stabbed, but as I have stressed, you must have known of the real risk that violence would be resorted to by Mr Baker if necessary. While the end result was unexpected, you knew Mr Baker was an erratic and unreliable person who was armed with a knife.

[28] I take a starting point of four and a half years imprisonment.

Personal features

[29] You have very many previous convictions for drug and dishonesty offending but, as mentioned, no history of violent offending. The Crown’s acknowledgment that the nature of your prior offending, extensive as it is, does not require an uplift in the starting point is I accept a proper one. Your history however precludes you from any credit for previous good character.

[30] I have already referred to your motor vehicle accident in 1994 and the subsequent drug dependence you developed. The present offending is drug-related, and insofar as your addiction may lie at the root of your involvement in this particular offending, it cannot under the Sentencing Act be used as a mitigating factor to explain your behaviour at the time of the offence.⁷ Insofar as that addiction and your impulsive conduct may be linked with the consequences of the motor vehicle accident and therefore not entirely of your making, I have some reservations as to the extent to which I can take that into account as a matter of personal mitigation given your long and persistent history of offending, but I acknowledge the

causal link in this particular instance. It is apparent that you are capable of leading a constructive life with the significant support of your family, and you have

_{demonstrated an ability to avoid reoffending with proper support and rehabilitation.}

⁷ R v Parker [2012] NZHC 2458.

[31] Your lengthy period of custodial remand will be taken into account by Corrections when calculating the time you have already served. You have also been subject to electronically monitored bail since 18 September last year (some eight and a half months) which I accept ought to be taken into account in setting your final sentence.

[32] You have offered to participate in a restorative justice conference with Mr Lochhead’s family. It is understandable they do not wish at this time to engage in that process, but I accept your intentions are genuine, and that you have expressed remorse for the death of Tony Lochhead.

[33] Taking these mitigating factors personal to you into account, I allow a

15 per cent deduction of eight months. The Crown accepts that you are entitled to full credit for your guilty plea to the charge of manslaughter, which results in a further 25 per cent reduction. That results in a final sentence of 2 years and

10 months imprisonment.

[34] The Crown do not contend for, nor do I consider it necessary to impose a minimum period of imprisonment.

[35] Mr Innes, if you would now please stand.

[36] On the charge of manslaughter you are sentenced to 2 years and 10 months imprisonment.

Three strikes warning

[37] Before you stand down, I am required under the Sentencing Act to give you

what is described as the “three strikes warning”.

[38] Given your conviction on the charge of manslaughter you are now subject to the three strikes law. The warning is this. If you are convicted of any one or more serious violent offence other than murder committed after this warning and if a Judge imposes a sentence of imprisonment, then you will serve that sentence without parole or early release. If convicted of murder committed after this warning, then

you must be sentenced to life imprisonment without parole unless it would be manifestly unjust to do so. In that event, the Judge must sentence you to a minimum term of imprisonment. You will be provided with a written notice which repeats the warning and contains a list of the “serious violent offences” to which the warning relates.

[39] Thank you Mr Innes, you can stand down.

Solicitors:

Jonathon Eaton Q C, Christchurch

Raymond Donnelly & Co, Christchurch