GIDEON v R [2016] NZCA 16

GIDEON v R [2016] NZCA 16 [18 February 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA581/2015[2016] NZCA 16BETWEEN ALEX EMILE GIDEONAppellantAND THE QUEENRespondentHearing: 11 February 2016Court: French, Simon France and Ellis JJCounsel: O S Winter for AppellantJ E Mildenhall for RespondentJudgment: 18 February 2016 at 11.30 amJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)[1] Mr Gideon pleaded guilty in the High Court to the manslaughter of his brother Tyrone and unlawful possession of a firearm. He was sentenced by Collins J to a term of imprisonment of two years and nine months.1 Mr Gideon now appeals the length of the prison term.[2] The facts of the case are tragic.1 R v Gideon [2015] NZHC 2333.[3] Mr Gideon and Tyrone were at home when a friend arrived with a double-barrelled sawn off shotgun and three cartridges. The friend left the gun with the brothers, who then loaded it and took turns taking photos of each other posing with the shotgun.[4] After this had gone on for a few minutes, Mr Gideon cocked the hammers behind each barrel of the shotgun. He then posed for a photo, aiming the shotgun at Tyrone with his fingers inside the trigger guard. While in this position, the right hand hammer was activated, resulting in Tyrone being shot in the torso and killed.[5] At sentencing, Collins J adopted a starting point of four and a half years' imprisonment, which he then reduced by three months on account of Mr Gideon'sage (21), 12 months for an early guilty plea and six months on account of remorse and family circumstances. That resulted in an end sentence of two years and ninemonths' imprisonment.[6] The sole ground of the appeal is that the Judge should have given a furtherdiscount of one to two months on account of Tyrone's contribution to the tragedy.[7] In declining to reduce the starting point on account of that factor, Collins J stated:[22] Mr Winter on your behalf says that your brother's conduct by joining in with you to "play" with the gun perhaps mitigates your culpability. For the reasons I have just outlined, I do not accept that submission. Regardless of whether Tyrone knew the gun was loaded, he bears no responsibility for your actions when pointing the loaded gun at him with your fingers on the trigger.[23] Ultimately, after very careful reflection, I have adopted a starting point of four and a half years' imprisonment. I have done so, accepting that whilst you have learnt a very harsh lesson, the community as a whole needs to be aware that the reckless use of firearms is something that society and the courts must condemn.[8] We do not agree with the Judge that Tyrone bore "no responsibility" for whathappened. In our view, that is an over-statement. Tyrone knew the gun was loaded, and fully participated in what was obviously an inherently dangerous and reckless activity. As counsel for the appellant, Mr Winter, put it, the two brothers were"hyping each other up". However, we also consider that the different view taken bythe Judge does not affect the correctness of the sentence, which was within range.2[9] The appeal is accordingly dismissed and the sentence confirmed.Solicitors:WinterWoods Lawyers, Palmerston North for AppellantCrown Law Office, Wellington for Respondent2 Criminal Procedure Act 2011, s 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.