IN THE HIGH COURT OF NEW ZEALAND
TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TAURANGA MOANA ROHE
CRI-2018-070-000050
[2019] NZHC 2067
THE QUEEN
v
COLIN RICHARD JEFFERIES-SMITH
CASEINO HETA WILLIAMS
Hearing:

22 August 2019

Appearances:

A J Pollett for the Crown
M A Edgar for Jefferies-Smith
J Holmes for Williams

Sentencing:

22 August 2019

SENTENCING REMARKS OF WOOLFORD J

Solicitors:

Pollett Legal Ltd (Office of the Crown Solicitor), Tauranga

Counsel:

M Edgar, Barrister, Auckland
J Holmes, Barrister, Tauranga

R v JEFFERIES-SMITH [2019] NZHC 2067 [22 August 2019]

 [1]

Colin Jefferies-Smith and Caseino Williams, you are for sentence today

following a six week jury trial in the Rotorua High Court, which commenced on 6 May
2019. At the conclusion of the trial on 17 June 2019, you, Mr Jefferies-Smith, were
found guilty of manslaughter and, you, Mr Williams, were found guilty of unlawful
possession of a firearm and being an accessory after the fact to manslaughter.
[2]

You, Mr Jefferies-Smith, have subsequently pleaded guilty to five charges of:
(a)

Possession of methamphetamine for supply;1

(b)

Offering to supply methamphetamine;2

(c)

Supplying methamphetamine;3

(d)

Offering to supply cannabis;4 and

(e)

Possession of cannabis for sale.5

You are to be sentenced on these charges today as well.
[3]

1
2
3
4
5
6
7
8

Mr Williams, you also subsequently pleaded guilty to eight charges of:
(a)

Injuring with reckless disregard (x 2);6

(b)

Assault with a firearm;7

(c)

Male assaults female (representative);8

Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2)(a). The maximum penalty is life imprisonment.
Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2)(a). The maximum penalty is life imprisonment.
Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2)(a). The maximum penalty is life imprisonment.
Misuse of Drugs Act 1975, ss 6(1)(e) and 6(2)(c). The maximum penalty is eight years’
imprisonment.
Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2)(c). The maximum penalty is eight years’
imprisonment.
Crimes Act 1961, s 189(2). The maximum penalty is five years’ imprisonment.
Crimes Act 1961, s 189(2). The maximum penalty is five years’ imprisonment.
Crimes Act 1961, s 194(b). The maximum penalty is two years’ imprisonment.

 (d)

Assault with a weapon;9

(e)

Threatening to kill (x 2);10 and

(f)

Assault with intent to injure.11

You too are to be sentenced today on these charges.
Summary of facts
[4]

Mr Jefferies-Smith was a low-level dealer in methamphetamine and cannabis.

The deceased was the Sergeant-at-Arms of the Notorious chapter of the Mongrel Mob.
Mr Jefferies-Smith had failed to complete a drug transaction, which resulted in a
witness, Wihapi, being $2,000 out of pocket. The deceased then took Mr JefferiesSmith’s car from him as a “taxing” exercise. The taxing took place prior to 5.30 pm
on 31 December 2017. Mr Jefferies-Smith subsequently paid money and drugs to the
deceased and appears to have believed that this would result in the return of his car.
[5]

Over the following days, Mr Jefferies-Smith grew increasingly angry about not

getting his car back and began to consider using violence, as evidenced in a text
message in which he said he was about ready to start chopping the cunts up.
[6]

On the morning of the shooting on 3 January 2018, Mr Jefferies-Smith made

three separate trips to the Trap, a second-hand store in a semi-industrial section of
Tauranga, where his car was located and the deceased had stayed overnight. The first
trip was shortly after midnight, the second around 5.36 am (at which time he met with
the deceased and was told he was not getting his car back), and the final, at around
9.35 am.
[7]

Prior to the shooting, Mr Jefferies-Smith obtained an unloaded firearm from

Caseino Williams, a Black Power gang member, who had some animus towards the
deceased.

9
10
11

Mr Jefferies-Smith subsequently sought ammunition and ultimately

Crimes Act 1961, s 202C. The maximum penalty is five years’ imprisonment.
Crimes Act 1961, s 306. The maximum penalty is seven years’ imprisonment.
Crimes Act 1961, s 193. The maximum penalty is three years’ imprisonment.

 obtained this from the witness, Ututaonga, at approximately 9.11 am on 3 January
2018. Mr Jefferies-Smith was then dropped at the Trap by the witness, Tihi.
[8]

Mr Jefferies-Smith was at the Trap from around 9.35 am attempting to mobilise

his car. He subsequently entered the premises and made his way upstairs to an area
where the bedrooms were located. He waited with a firearm and ammunition until the
deceased appeared from one of the bedrooms. He immediately pointed the firearm at
him and told him to put the keys on the table. When the deceased dismissed him and
started walking way, Mr Jefferies-Smith shot him twice. This was at approximately
11.28 am on 3 January 2018. The two shots struck the deceased in the middle right
side of the back and the upper left side of the back as he was initially walking away,
then running away from Mr Jefferies-Smith. The shots were fired at a close range.
[9]

Following the shooting, the deceased was taken to hospital by a customer of

the Trap. Mr Jefferies-Smith was taken by the witness, Keepa, to Mr Williams’ house,
where he was arrested the following day by the Armed Offenders Squad. The firearm
used to shoot the deceased was also found hidden under a mattress at the address.
[10]

Mr Williams was clearly aware that Mr Jefferies-Smith was embroiled in a

dispute with the deceased about his car. There is evidence that in the days prior to the
shooting he told Mr Jefferies-Smith to stand up for himself or take a stand and shoot
the cunt. After Mr Jefferies-Smith returned to Mr Williams’ house with the firearm he
had been given by him, Mr Williams was well aware that the killing had taken place
and took a series of actions designed to avoid Mr Jefferies-Smith’s conviction. He
allowed Mr Jefferies-Smith to stay at his address. He provided him with fresh
clothing. He bought him a new SIM card. He discarded his clothes. He told him what
to say to the Police.
[11]

The additional drugs charges to which Mr Jefferies-Smith has pleaded guilty

arose out of the investigation into the shooting of the deceased, during the course of
which Mr Jefferies-Smith’s cell phone data was analysed. Analysis of the data
indicated that between 20 December 2017 and 3 January 2018, Mr Jefferies-Smith
regularly involved himself in the possession and supply of controlled drugs.

 [12]

The methamphetamine offending involved Mr Jefferies-Smith offering to

supply a total of 1.7 grams and supplying an unknown quantity of methamphetamine,
but which was less than 0.5 grams. The offending involved a total of four offers to
supply and one actual supply. In addition, on two occasions Mr Jefferies-Smith was
in possession of methamphetamine totalling one gram for supply.
[13]

The cannabis offending involved Mr Jefferies-Smith offering to supply

cannabis on 20 occasions, totalling approximately 65.5 ounces.

In addition,

Mr Jefferies-Smith was in possession of cannabis for sale on at least two occasions.
[14]

The additional charges to which Mr Williams has subsequently pleaded guilty

relate to violence against his former partner between 2016 and 2018. The first injuring
with reckless disregard charge occurred when an argument about money escalated and
Mr Williams pushed the victim on to the ground. Mr Williams told her to be quiet as
she groaned in pain, but when he eventually took her to hospital that night, her arm
was found to be broken.
[15]

The assault with intent to injure charge also involved Mr Williams assaulting

the victim during an argument, punching her and kicking her when she was on the
floor.
[16]

The second injuring with reckless disregard charge was a similar incident,

where Mr Williams punched the victim in the ribs and told her that there was nothing
wrong with her when she reacted to the pain. The victim was in severe pain for weeks
and when eventually she went to the hospital, it was found that her ribs had been
fractured.
[17]

The assault with a weapon charge involved Mr Williams throwing a river stone

at the victim’s head from a distance of two or three metres during an argument.
[18]

The male assaults female charge was representative and involved a series of

arguments that ended with Mr Williams assaulting the victim. She described herself
as being scared of Mr Williams and referred to herself as a battered woman in this
period.

 [19]

The first threatening to kill charge relates to an incident where Mr Williams

pointed a loaded shotgun at the victim several times. He kept breaking the gun so that
she could see there was ammunition in it. He took the cartridge out without her
realising, pushed the muzzle to her head and pulled the trigger. The victim said she
thought she was dead and waited for the pain.
[20]

The second threatening to kill charge and assault with a firearm arose from an

incident where Mr Williams and the victim were having an argument about associates
staying at their address. Mr Williams had a rifle, which he periodically pointed at the
victim saying that he was going to kill her. When she was about to leave, he hit her
hard on the back of the head with the butt of a rifle. She felt drowsy and nauseous
from the blow. She described herself as having blurred vision and being off-balance
for days afterwards. Over a year and half later, she still periodically experiences
shooting pains in her head. The rifle he used in the assault was the same one he later
gave to Mr Jefferies-Smith, who used it to shoot the deceased.
Victim impact statements
[21]

The deceased’s brother, Kenneth Allan Waite, his daughter, Stormie Waite, and

his sister, Tina Paki, have provided victim impact statements to the Court. They
discuss the pain and confusion they have experienced as a result of his death and the
huge hole that has been left in their whānau. I acknowledge their loss and the
devasting impact his death has had on all family members.
[22]

The ex-partner of Mr Williams has also provided a victim impact statement to

the Court, detailing her experience of suffering physical and mental abuse at the hands
of Mr Williams.
Pre-sentence reports
Mr Jefferies-Smith
[23]

The report writer said that the manslaughter was a significant departure from

Mr Jefferies-Smith’s past offending, which had been motivated by a desire for
financial gain and involvement with drugs.

 [24]

Mr Jefferies-Smith expressed some remorse for the deceased and also for his

own whānau and friends, but struggled to articulate himself when asked about his
thoughts and feelings towards the deceased. The report writer was of the opinion that
he had detached himself from emotion connected to his offending and current
situation.
[25]

Because of his entrenched anti-social attitudes and associates, his lack of

problem solving skills and his poor impulse control, Mr Jefferies-Smith was assessed
at being at moderate risk of further offending, but not to the degree of his current
conviction. His mother stated that he grew up in a household where he was exposed
to horrific family violence, perpetrated against her by his father. The report writer
stated the normalisation of violence, weapons and intimidation within his peer group
allowed him to rationalise his response to the stress he perceived he was under. The
report writer’s view of his situation was that his becoming a low-level drug dealer
escalated considerably over a short period of time. He lacked any genuine insight into
this situation however, and appears not to have a lot of misgivings about the lifestyle
that he was living prior to the offending.
[26]

Mr Jefferies-Smith has had long standing difficulties with depression and

anxiety and identified himself as a regular drug user, smoking half a gram of cannabis
daily and using methamphetamine once every two or three weeks. Mr Jefferies-Smith
admitted to smoking some cannabis the day before the offending and stated he had not
slept since New Year’s Day. He was not able to offer any information as to what his
thought process was in the 48 hours leading up to the offence on 3 January 2018.
[27]

He is assessed as being at high risk of harming others, given the normalisation

of violence and intimidation within his social setting. This risk has the potential to be
lowered if he engages in treatment in prison and remains motivated.
[28]

The report writer stated that Mr Jefferies-Smith has significant whānau

support. He has a five-year-old son who lives with his ex-partner. Mr Jefferies-Smith
spoke about wanting to be a good parent to his son when he is released and has ongoing
telephone contact with him while in custody.

 [29]

Upon his release from his last sentence of imprisonment in 2016, Mr Jefferies-

Smith failed to attend the community-based rehabilitation programme, which was a
condition of his release. It is likely he will qualify for a programme for violent
offenders and he advised the writer that he is motivated to complete all treatment
options available to him in prison.
Mr Williams
[30]

The report writer said that Mr Williams’ extensive criminal history follows a

pattern of escalating violence since about 2000. Mr Williams denies having anything
to do with the death of Lance Waite and feels aggrieved for being convicted of
possession of a firearm and being an accessory after the fact to manslaughter.
[31]

Mr Williams does not accept responsibility for the family violence charges and

says that the victim made it all up. He states that he pleaded guilty because he felt that
no one would believe him.
[32]

Mr Williams indicated that he has mental health issues and had not received

any help for it despite reaching out.
[33]

The report writer assessed his likelihood of re-offending as moderate to high

based on the escalation of his current offending in comparison with his previous
criminal history. Taking into account the nature of his current offending, the report
writer assessed Mr Williams’ risk of harm to others as high and recommended a
sentence of imprisonment.
Crown submissions - Mr Jefferies-Smith
Manslaughter
[34]

In accordance with s 9 of the Sentencing Act 2002 and Taueki, the Crown

submits that the following are aggravating features of the manslaughter offending:

 (a)

Premeditation:12 A significant level of planning and premeditation was
involved in Mr Jefferies-Smith separately obtaining a firearm and
ammunition and in taking these items to the scene with the intention of
confronting the deceased. The Crown refers to text messages which
show that Mr Jefferies-Smith grew increasingly angry after his car was
not returned.

(b)

Unlawful entry into a dwelling place:13 Mr Jefferies-Smith went to the
floor that was used as a dwelling place unlawfully and waited for the
deceased.

(c)

Use of a weapon:14 Mr Jefferies-Smith obtained the firearm illegally,
for the purpose of confronting the deceased and separately obtained
ammunition.

(d)

Vigilante action:15 Mr Jefferies-Smith’s reason for confronting the
deceased was to get his car back. The Police were not contacted at any
point and the Crown submits that this was a case of him taking the law
into his own hands.

[35]

The Crown submits that provocation and excessive self-defence are not

mitigating features. The deceased’s conduct did not amount to serious provocation
and was not sufficiently proximate in time to be an operative cause of the violence.
The Crown does not accept that his actions were defensive, because he went to the
address and lay in wait for the deceased. The deceased had made no threats. There
was no evidence supporting Mr Jefferies-Smith’s claim that the deceased had seen him
with a sawn-off shotgun at the Trap. Mr Jefferies-Smith shot the deceased twice in
the back as he walked away from him.

12
13
14
15

Sentencing Act 2002, s 9(1)(i); R v Taueki [2005] 3 NZLR 372 at [31](b).
Sentencing Act 2002, s 9(1)(b).
Sentencing Act 2002, s 9(1)(a); R v Taueki [2005] 3 NZLR 372 at [31](d).
R v Taueki [2005] 3 NZLR 372 at [31](m).

 [36]

The Crown refers to a number of sentencing decisions for manslaughter

involving guns, where the defendants had been acquitted of murder; specifically R v
Flavell,16 R v Bevan17 and R v Christie.18
[37]

The Crown submits that the present offending is more serious than these cases.

In Flavell there was no premeditation. In Bevan, the defendant thought the gun was
safe. In Christie, the defendant did not deliberately fire the gun at the deceased. Here,
the Crown says, Mr Jefferies-Smith deliberately shot the deceased twice.
[38]

The Crown submits that the evidence supports a conclusion that Mr Jefferies-

Smith deliberately shot the deceased twice in a premeditated attack intending to cause
more than minor bodily harm, albeit without an intention to kill or a conscious
appreciation of the real risk of death.
[39]

The Crown also discussed how the case would be dealt with according to

Taueki and referred to cases where offenders were found guilty of manslaughter as a
party to a principal offender’s murder.19
[40]

On this basis, the Crown submits that a starting point in the region of 12 years’

imprisonment is warranted. The Crown submits that for the manslaughter charge, the
aggravating features are Mr Jefferies-Smith’s history of 30 convictions, including a
small number of prior offences for violence.
[41]

The Crown says that Mr Jefferies-Smith never made an offer to plead guilty to

manslaughter.
Drug offending
[42]

Further, the Crown submits that a cumulative term of imprisonment is

warranted for the drug offending because it is different in kind.20 As the total amount

16
17
18
19
20

R v Flavell [2014] NZHC 3373
R v Bevan [2012] NZHC 2969.
R v Christie CRI-2003-016-6522.
Afamasaga v R [2015] NZCA 615; R v Challis [2008] NZCA 470; R v Pahau CRI-2008-043-4555.
Sentencing Act 2002, s 84.

 of methamphetamine found was less than five grams, the offending falls within band
one of the tariff case R v Fatu:21
Band one – low-level supply (less than 5 g) – two years’ to four years’
imprisonment.

[43]

For the cannabis offending, the Crown submits that the offending is R v Terewi

category two offending:22
Category 2: encompassed small-scale cultivation of cannabis plants for a
commercial purpose ie with the object of deriving profit. The starting point
for sentencing was generally between two and four years, but, where sales
were infrequent and of very limited extent, a lower starting point might be
justified.

[44]

The Crown submits that Edmonds v Police is relevant for Mr Jefferies-Smith’s

drug offending.23 In Edmonds the quantity of methamphetamine was higher at
4.88 grams (falling under Fatu band one), the cannabis offending occurred on
13 separate occasions and involved the smaller quantity of 347 grams (category two
of R v Terewi), but the defendant was also charged with cultivating cannabis. The
sentencing Judge had selected starting points of three and a half years for the
methamphetamine offending, with an 18-month uplift for the cannabis offending. On
appeal, Brewer J held that the overall starting point of five years’ imprisonment for the
totality of the drugs offending was on the high side, but that the end sentence was
within range because of the discounts that were applied.
[45]

On this basis, the Crown submits that a starting point for the totality of the drug

offending would be in the vicinity of four years’ imprisonment. No uplift is sought as
the defendant has no previous convictions relating to drug offending. Mr JefferiesSmith did plead guilty so the Crown acknowledges that this warrants a discount. The
pleas were not at the earliest stage, although it is acknowledged that resolution
discussions were engaged in promptly following the conclusion of the jury trial.
Taking into account totality and a reduction for guilty pleas, the Crown recommends
a cumulative term in the vicinity of two years’ imprisonment.

21
22
23

R v Fatu [2006] 2 NZLR 72 at [34].
R v Terewi [1999] 3 NZLR 62.
Edmonds v Police [2014] NZHC 3238.

 Minimum period of imprisonment
[46]

Finally, the Crown submits that under s 86 of the Sentencing Act 2002, a

minimum period of imprisonment of between half and two-thirds of the sentence
should be imposed for the purpose of denunciation, deterrence and holding the
defendant accountable.
Defence Submissions Mr Jefferies-Smith
Manslaughter
[47]

Mr Jefferies-Smith’s version of events is as follows: During a confrontation

with the deceased that morning at the Trap, the deceased presented and made known
to Mr Jefferies-Smith that he was in possession of a sawn-off shot gun. Following this
incident, Mr Jefferies-Smith obtained a firearm and then travelled to obtain
ammunition, before returning to the Trap and placing it in the boot of the car.
Mr Jefferies-Smith set about making repairs to his car with the aim of taking it back.
The deceased then threatened serious harm to Mr Jefferies-Smith’s mother and son if
he did not pay more money to the deceased by the following day. In response to these
immediate threats, Mr Jefferies-Smith retrieved his firearm and ammunition and went
inside to confront the deceased.

Mr Jefferies-Smith loaded the firearm upon

confronting the deceased. He asked the deceased to “put the keys on the table” or
words to that effect. The deceased acted dismissively towards Mr Jefferies-Smith,
saying he would not use it (meaning his gun) before descending the stairs. He then
fired twice at the deceased at short range, but intended only to stop the deceased, not
kill him. He said he was fearful that the deceased was going to his car to retrieve his
shotgun.
[48]

On this evidence, counsel submits that there was no premeditation or unlawful

entry, as contended by the Crown. It is submitted that the occupier knew of and
consented to Mr Jefferies-Smith’s presence at the Trap. Counsel submits Mr JefferiesSmith’s actions were motivated by fear and self-defence. As for the Crown’s
submission that this was vigilant action, counsel submits that the evidence does not
support a verdict of Mr Jefferies-Smith acting principally because he wanted his car
back or that he took the law into his own hands.

 [49]

Counsel submits that the conduct of the deceased should be taken into account

in setting the starting point.24 He submits that Mr Jefferies-Smith acted solely to stop
the deceased retrieving his shotgun. Counsel concedes the jury may have considered
the firing of the second shot was excessive in the circumstances. Nevertheless, counsel
submits that the second shot was fired as the deceased was going through the door, as
Mr Jefferies-Smith believed he was going to retrieve his shotgun. Further, there was
no immediate sign that the first shot had had any effect on the deceased.
[50]

In addition to the cases put forward by the Crown, counsel for Mr Jefferies-

Smith refers to the following manslaughter cases involving discharge of a firearm at
short range: R v McKee,25 R v Pira ,26 R v Dodd,27 R v Kirk.28
[51]

Counsel accepts that the offending was more serious than Pira where the fatal

shot was fired by accident in a physical struggle and that the level of recklessness was
greater than that in Dodd. Counsel submits that the situation was similar to Kirk, but
accepts that the deceased was unarmed at the time and had not been violent to
Mr Jefferies-Smith immediately prior to the shooting. Counsel submits the offending
was less serious than in Christie, where there was a high level of premeditation and
no evidence of self-defence. Similarly, counsel submits the offending was less serious
than Flavell as in that case there was no self-defence element and no suggestion the
victim was armed. Further, unlike McKee, Mr Jefferies-Smith did not instigate the
altercation. Counsel also submits that no real options were available to Mr JefferiesSmith that would stop him reaching the shotgun in his car.
[52]

Counsel does not agree with the Crown that Bevan is a comparable case and

submits that cases where offenders were found guilty of manslaughter as a party to a
principal offender’s murder are not relevant.
[53]

Counsel submits that an appropriate starting point is therefore between six and

a half and seven years’ imprisonment.

24

Sentencing Act 2002, s 9(2)(c); tauekei at [32](a)
R v McKee [2017] NZHC 2286.
26
R v Pira HC Rotorua CRI-2006-063-329, 13 December 2006.
27
R v Dodd [2018] NZHC 3432.
28
R v Kirk [2016] NZHC 1249.
25

 [54]

Counsel submits that no uplift is warranted for Mr Jefferies-Smith’s criminal

history, as he has no relevant violence convictions.
[55]

Counsel submits that a 25 per cent discount is warranted for Mr Jefferies-

Smith’s offer to plead guilty to manslaughter expressed to and recorded by his first
counsel. Mr Jefferies-Smith understood his offer had been formally conveyed and
rejected by the Crown, but it appears no formal offer was in fact made.
[56]

Counsel also submits that a further discount for remorse is appropriate.

Mr Jefferies-Smith handed himself in when he learnt of the deceased’s death and
clearly showed genuine regret in his Police interviews (evidenced also by his offer to
plead). Mr Jefferies-Smith has written letters of apologies to the family members of
the deceased and a letter of remorse to the Court.
[57]

Counsel concurs with the submissions of the Crown regarding Mr Jefferies-

Smith’s drug offending that a cumulative end sentence of two years’ imprisonment is
appropriate.
[58]

Counsel disagrees, however, that a minimum term of imprisonment should be

imposed, noting that it was not imposed in the cases referred to. Further, counsel
submits the Crown has failed to identify any violent distinguishing feature that justifies
the Court adopting a different approach in this matter. Mr Jefferies-Smith has a limited
criminal history, and has demonstrated insight into the nature and seriousness of his
offending.
Analysis – Mr Jefferies-Smith
Mr Jefferies-Smith: setting the starting point
[59]

Having listened to the evidence and assessing the reliability of all witnesses, I

do not accept two assertions made by Mr Jefferies-Smith:
(a)

That he was threatened with a sawn-off shotgun that morning by the
deceased, who had the firearm in his car;

 (b)

That minutes prior to the shooting, the deceased threatened to harm
Mr Jefferies-Smith’s family if he did not pay more money by the
following day.

[60]

No-one saw the deceased in possession of a sawn-off shotgun at the Trap.

Further, when he was shot, he ran to the road, and not to his car to retrieve a firearm,
which he could use for self-defence or retaliation. No firearm was found in subsequent
Police searches of the property or the deceased’s car. The other occupants of the Trap
did not have the opportunity to dispose of a firearm before Police arrived.
[61]

No other person at the Trap heard the deceased make those threats. In any

event, Mr Jefferies-Smith had obtained the firearm from Mr Williams earlier that
morning and the ammunition later that morning, well before the shooting. I do accept
that the deceased had earlier humiliated and threatened Mr Jefferies-Smith which
prompted him to arm himself, but I do not accept that the deceased posed any
immediate threat to Mr Jefferies-Smith.
[62]

My assessment is that Mr Jefferies-Smith went to the Trap with a firearm and

ammunition and threatened the deceased in order to get his car back. Mr JefferiesSmith lost his temper when the deceased mocked him and told him that he would not
use the gun.
[63]

On the other hand, I do not accept the Crown’s submission that Mr Jefferies-

Smith unlawfully entered or was unlawfully present in the Trap, being a dwelling
house. His presence was both known and consented to by the occupier, the witness,
Keepa. Nor do I accept that Mr Jefferies-Smith’s actions could be characterised as
vigilante action. His primary motivation was to get his car back.
[64]

On the basis of my assessment of the evidence, I will set a starting point.

[65]

There is no guideline judgment for manslaughter29 and the circumstances of

manslaughter vary markedly. Its seriousness can fall just short of murder. 30 Where

29
30

R v Leauta [2002] 1 NZLR 215 (CA) at [59].
R v Dodd [2018] NZHC 3432, citing R v Wickliffe [1987] 1 NZLR 55 (CA).

 there is serious violence and where serious injury was a foreseeable outcome, Taueki
may be useful.31

However, the Court of Appeal has stated there can be some

awkwardness in applying the Taueki guidelines to manslaughter cases and that an
analysis of comparable cases is often the best guide.32 I will therefore assess the
offending in light of the comparable cases that have been put forward by counsel.
[66]

Firstly, I do not think Bevan is helpful as the defendant was in a family

relationship with the deceased and they had been in a dispute for days. I also disagree
with defence counsel’s submission that Kirk is similar. The deceased in that case was
a perpetrator of family violence, and was swinging a meat cleaver at the defendant.
[67]

The context of this matter is similar to the background of animosity in Pira and

Dodd. It is implicit in the jury’s verdict that Mr Jefferies-Smith did not intend to kill
the deceased. However, he went armed to the deceased’s address when a confrontation
was inevitable. I consider his conduct in deliberately firing at the deceased warrants
a higher starting point than Pira and Dodd. In Pira the gun went off accidentally in a
struggle. Mr Dodd deliberately fired his gun, but it was at a far greater distance.
[68]

I also consider that a higher starting point than Flavell and McKee is necessary,

as those cases did not involve premeditation. Mr McKee was intoxicated and took a
gun to his friend’s address. Mr Flavell had the gun in his car and got it out during a
confrontation. Neither defendant had anticipated that they would be using these
weapons for the purposes of a dispute. In this case, Mr Jefferies-Smith obtained the
firearm from Mr Williams (who encouraged him to “shoot the cunt”) and separately,
obtained ammunition. He went to the Trap to get his car back.
[69]

This case is most similar to Christie, where the defendant obtained a gun by

deception and separately got ammunition, and went into a hostile situation armed, for
the ostensible purpose of scaring the deceased. However, it was held in that case that
Mr Christie released the trigger accidentally.

In this case, Mr Jefferies-Smith

deliberately fired his firearm at close range.

31
32

R v Tai [2010] NZCA 598 at [11], citing R v Jamieson [2009] NZCA 555.
Murray v R [2013] NZCA 177 at [27].

 [70]

The verdict of manslaughter by the jury, in my opinion, falls just short of

murder. For these reasons, I consider that ten years’ imprisonment is an appropriate
starting point for the manslaughter charge.
Adjusting the starting point
[71]

I will not uplift the starting point for Mr Jefferies-Smith’s criminal history. The

only violence convictions he has are one male assaults female conviction from 2015
and two common assaults from 2006 and 2009. The current charge is markedly more
serious than his previous convictions.
[72]

As for any discount, defence counsel contends that he attempted to plead guilty

from the outset of the case. In R v Hessell the Court of Appeal said an offender should
not be disadvantaged by the fact that the prosecution chose to proceed to trial on a
more serious charge:33
For example, if an offender charged with murder communicated at the first
reasonable opportunity that he or she was willing to plead guilty to
manslaughter, but the prosecution chose to proceed to trial on the murder
charge, the offender should receive the maximum reduction for the plea if
subsequently convicted of manslaughter.

[73]

However, the Supreme Court stressed that the timing of a plea was not the only

important factor:34
… the credit that is given must reflect all the circumstances in which the plea
is entered, including whether it is truly to be regarded as an early or late plea
and the strength of the prosecution case.

[74]

In Dodd, a 20 per cent discount was given because the defendant offered to

plead guilty several months before trial.35 However, Duffy J stated that the Crown
would have been sensible to accept the offer and that at trial, she formed the view that
it was a quintessential case of manslaughter.36

33
34
35
36

R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [74].
R v Dodd [2018] NZHC 3432 at [89].
At [89]-[90].

 [75]

On the other hand, in Flavell, a discount of five per cent was awarded for the

defendant’s offer to plead guilty a week before trial began. 37 It was held that in light
of the overwhelming nature of the evidence, a higher discount was not appropriate.
[76]

I am of the view, and Crown counsel confirms, that the Crown would have

refused a guilty plea to manslaughter if it had been offered. The evidence was very
strong and the verdict was not obviously available. Although Mr Jefferies-Smith told
his counsel at the first possible opportunity that he would consider pleading guilty to
manslaughter, his willingness to do so was never formally conveyed to the Crown,
although it appears that there were informal discussions. In those circumstances, I
consider that only a ten per cent discount is available.
[77]

I have today, also been provided with a letter of remorse by Mr Jefferies-Smith,

but I will not give any further discount for remorse. The pre-sentence report suggests
Mr Jefferies-Smith lacked genuine insight into the offending or how his lifestyle, his
drug use and his peer group contributed to his offending.
[78]

Applying the discount of ten per cent, the end sentence for the manslaughter

charge is nine years’ imprisonment.
[79]

For Mr Jefferies-Smith’s drug offending, I will follow the sentence

recommended by the Crown and accepted by his counsel as appropriate, per Fatu band
one38 and Terewi category two.39 A four year starting point is appropriate, which
results in an end sentence of two years’ imprisonment after taking into account the
principle of totality and a guilty plea discount. This will be cumulative on the
manslaughter sentence. The total sentence to be served by Mr Jefferies-Smith is,
therefore, one of 11 years’ imprisonment.

37
38
39

R v Flavell [2014] NZHC 3373 at [56].
R v Fatu [2006] 2 NZLR 72 at [34].
R v Terewi [1999] 3 NZLR 62.

 Crown submissions Mr Williams
[80]

For the firearms offence, the Crown submits that Moore v R is a comparable

case.40 There the appellant was charged with unlawful possession of a firearm and
perverting the course of justice. The Court upheld a starting point of three and a half
years’ imprisonment for a charge of unlawful possession of a firearm. The appellant
gave a firearm to his friend without knowing he would kill the deceased, but he did
know that it was loaded and thought it would be used to “deal with” gang members.
Afterwards, the appellant helped his friend conceal his actions.
[81]

The Crown submits that Mr Williams was similarly aware that Mr Jefferies-

Smith was in a dispute with the deceased. He encouraged Mr Jefferies-Smith to “stand
up” for himself, “take a stand” and “shoot the cunt”. The Crown acknowledges that
the firearm was not loaded. A starting point of three to three and a half years’
imprisonment is submitted as appropriate for this charge.
[82]

As to Mr Williams’ charge of accessory after the fact to manslaughter, the

Crown submits that premeditation is a relevant aggravating feature. 41 Mr Williams
was aware that the killing had taken place and took a series of steps to help
Mr Jefferies-Smith to avoid conviction. The Crown submits that there was evidence
at trial that Mr Williams:

40
41

(a)

Allowed Mr Jefferies-Smith to stay at his address;

(b)

Provided him with fresh clothing;

(c)

Provided him with a SIM card;

(d)

Discarded his clothes; and

(e)

Guided him with what to say in explanation of the offending.

Moore v R [2019] NZCA 205.
Sentencing Act 2002, s 9(1)(i).

 [83]

The Crown notes that the Court of Appeal has said that interference with the

course of justice by helping those who commit homicide to escape arrest calls for a
deterrent sentence.42 The Crown submits the following cases are relevant for setting
a starting point on this charge: R v Kahotea,43 R v Te Moana,44 and R v Comer.45
[84]

The Crown accepts that the physical evidence lost in this case (the clothes) did

not thwart the Police investigation, but submits that Mr Williams’ actions were more
extensive and sustained than the above cases. Resultantly, the Crown submits a
starting point in the range of 18 to 24 months’ imprisonment is appropriate.
[85]

The Crown submits that an overall sentence of four and a half years’

imprisonment to five and a half years’ imprisonment for these two offences is not
wholly out of proportion to the gravity of offending. However, considering that
Mr Williams has already been sentenced to 23 months’ imprisonment in the District
Court for the unlawful possession of other firearms in the same period, the Court may
be inclined to give a modest reduction for totality.46
[86]

Regarding Mr Williams’ offences against his partner, the Crown submits the

lead charges are the assault with a firearm and threatening to kill, which arise from a
single incident in November/December 2017. The Crown submits that the following
are aggravating features of the offending:
(a)

Serious injury:47 one of the charges involved the victim’s arm being
broken as a result of being pushed by Mr Williams and another involved
the victim’s ribs being fractured.

(b)

42
43
44
45
46
47
48

Use of a weapon:48 this is inherent in some of the charges.

R v Raroa CA190/87, [1987] 2 NZLR 486.
R v Kahotea CRI-2008-083-703, CRI-2008-083-704.
R v Te Moana [2018] NZHC 1480.
R v Comer [2017] NZHC 3243.
Sentencing Act 2002, s 85.
R v Taueki [2005] 3 NZLR 372 at [31](c).
Sentencing Act 2002, s 9(1)(a); R v Taueki [2005] 3 NZLR 372 at [31](d).

 (c)

Attacking the head:49 some of the offending involved attacks to the
head, in particular the assault with a firearm charge involved
Mr Williams striking the victim’s head with the butt of a rifle.

(d)

Vulnerability of the victim:50 the victim was Mr Williams’ former
partner.

She is smaller and less strong than Mr Williams.

The

relationship was characterised by regular violence and the victim
describes herself as being scared of Mr Williams and like a “battered
woman”.
[87]

The Crown refers to R v Simon, an appeal against a six-year sentence for

several offences (including serious violence against a partner).51 The Court of Appeal
held that the starting point of three years for the lead charge of threatening to kill his
former partner was high, but the overall assessment for such serious offending was
entirely appropriate on a totality basis. The Crown submits this was as serious as the
lead offending in R v Simon, as the victim was struck in the head with the butt of a
rifle. She was dazed, in pain and had blurred vision, and continues to have occasional
nerve pain. Mr Williams continued to point a gun at her and verbalise his intent to kill
her. The Crown submits that a starting point of three to three and a half years’
imprisonment is appropriate.
[88]

The Crown also submits that an uplift of 12 months’ imprisonment is warranted

for the earlier threat to kill where Mr Williams pulled the trigger of his gun against the
victim’s head. The Crown states that a further 18-month uplift is appropriate for the
remaining offending, involving multiple incidents of serious violence over many
years. This would result in an overall starting point of five and a half to six years’
imprisonment. The Crown refers to R v Clarke as authority that cumulative sentences
can be imposed for assaults of a similar kind against the same victim, which are not
connected in time or location: “A “concession” for multiple offending cannot be
expected by such offenders.” 52

49
50
51
52

R v Taueki [2005] 3 NZLR 372 at [31](e).
Sentencing Act 2002, s 9(1)(f); R v Taueki [2005] 3 NZLR 372 at [31](i).
R v Simon [2014] NZCA 207.
R v Clarke CA128/06, 6 June 2006.

 [89]

The Crown submits that the following are aggravating features for these

charges:
(a)

Mr Williams has over 60 convictions, three of which are for male
assaults female (from 2018, 2009 and 1999).

A small uplift is

warranted;
(b)

The offending was committed whilst Mr Williams was subject to
release conditions after his parole on an aggravated robbery charge.

[90]

The Crown notes the defendant entered early guilty pleas and agrees that a full

25 per cent discount is warranted. As a result, the Crown submits the end sentence
should be between four to four and a half years’ imprisonment for these charges.
[91]

The Crown notes that the Court will need to make an assessment of overall

totality. Given the range and the seriousness of Mr Williams’ offending, the Crown
submits that the total combined sentences for all charges does not result in a total
period of imprisonment wholly out of proportion to the gravity of overall offending.
Defence Submissions Mr Williams
[92]

Counsel submits that there was no clear evidence at trial as to where

Mr Jefferies-Smith obtained the firearm he used to shoot the deceased. He accepts
that it was found at Mr Williams’ house the day after the shooting, but submits that the
jury may have relied on the occupier presumption in the Arms Act in finding him guilty
of unlawful possession of it. Further, counsel takes issue with the inference made by
the Crown that Mr Williams was “well aware” that Mr Jefferies-Smith had killed the
deceased.
[93]

For the firearms charge, counsel acknowledges that the case of Moore v R, is

very much on point with the present matter. However, counsel submits that the starting
point should be lower than the three and a half year starting point upheld in Moore,
because Mr Williams’ firearm was not loaded.

 [94]

Counsel suggests the end sentence in Moore “may not be substantially

different” to the appropriate end sentence here, given the similarity between the Moore
perverting the course of justice charge and Mr Williams’ accessory charge.
[95]

Counsel referred to other cases and accepted that an end sentence of 18 months’

imprisonment may be appropriate for the accessory charge. 53
[96]

For the charges relating to Mr Williams’ former partner, counsel submits they

fall into R v Nuku band three:54
Band three: a starting point of two years up to the statutory maximum (either
five or seven years, depending on the offence) will apply where three or more
of the aggravating features set out in Taueki are present and the combination
of those features is particularly serious. The presence of a high level of or
prolonged violence is an aggravating factor of such gravity that it will
generally require a starting point within band three, even if there are few other
aggravating features.

[97]

Counsel also referred to other cases involving intent to injure charges and

submits that a starting point of three years may be appropriate, with a one-year uplift
(to recognise the number of offences and the period over which they occurred) and a
one-year discount to reflect the early guilty plea.
[98]

Finally, counsel submits that further discounts for remorse may be available.

Analysis - Mr Williams
[99]

On the evidence at trial, I am satisfied beyond reasonable doubt that

Mr Williams gave the firearm to Mr Jefferies-Smith, which he then used to shoot the
deceased. Two witnesses identified the firearm as being in Mr Williams’ possession
in the weeks and months before the shooting. Mr Williams knew of Mr JefferiesSmith’s dispute with the deceased and had encouraged him to “shoot the cunt”. The
Court of Appeal in Moore v R held that the starting point should be near the maximum
when the worst risks inherent in unlawful possession of a firearm had come to pass. 55
This case is an example of the worst-case scenario, save only for the fact that the

53
54
55

R v Rapana CA7/06 [22 May 2006]; R v Swinton [2018] NZHC 2910.
Nuku v R [2012] NZCA 584 at [38].
Moore v R [2019] NZCA 205.

 firearm when it was given to Mr Jefferies-Smith was not loaded. On that basis, three
years’ imprisonment is an appropriate starting point.
[100] Further, after the shooting, Mr Williams helped Mr Jefferies-Smith to avoid
detection and provided him with a safe haven. His actions were not fatal to the Police
investigation, but they were premeditated and connected to his role in providing
Mr Jefferies-Smith with the firearm. Considering the evidence before me at trial and
the cases brought before me by counsel, a starting point of 18 months’ imprisonment
is appropriate on the accessory charge. This means the first two charges carry the
same starting point as the offending in Moore.
[101] When the Armed Offenders Squad arrested Mr Jefferies-Smith at the
Mr Williams’ house the day after the shooting, the Police not only recovered the
firearm which Mr Jefferies-Smith had used to shoot the deceased, but also two other
firearms, a .22 calibre rifle that had been cut down to pistol length and a full length
410 gauge shotgun. Mr Williams was charged with possessing these two other
firearms without lawful proper and sufficient excuse. He pleaded guilty to these two
charges and was sentenced on 11 April 2018 to 23 months’ imprisonment, from a
starting point of two years’ imprisonment.
[102] If I had been sentencing Mr Williams on all three charges of unlawfully
possessing a firearm, I would have adopted a starting point of three and a-half years’
imprisonment, which is higher than the starting point of three years’ imprisonment
which is appropriate just for the current charge. In order to comply with the principle
of totality, I will therefore deduct 23 months’ imprisonment from the starting point of
three and a-half years’ imprisonment, to reach a sentence of 19 months’ imprisonment,
which I shall impose on the charge of unlawful possession of a firearm.
[103] As to the accessory charge, I will follow the lower starting point recommended
by the Crown and accepted by his counsel as appropriate of 18 months’ imprisonment,
which will be cumulative on the sentence of 19 months’ imprisonment.
[104] Mr Williams’ violence against his former partner was a connected pattern of
offending. The offending occurred over a long period of time and arose out of

 arguments between Mr Williams and his former partner, which escalated into threats
and assaults. The relationship became characterised by abuse and violence.
[105] The extent of this physical and psychological harm Mr Williams caused to his
former partner is significant. The aggravating factors of the last and most serious
assault and threatening to kill in November/December 2017 were the vulnerability of
the victim, the seriousness of her injury, the attack to her head and the use of a weapon.
I adopt a starting point of three years’ imprisonment for those offences, which I uplift
by a year to take account of all the other offences which involved a broken arm and
fractured ribs. I will not uplift the starting point further because of Mr Williams’
previous convictions for male assault female, or because he committed these offences
while subject to release conditions. Firstly, I remain conscious of the totality principle
and, secondly, Judge Cameron uplifted the starting point on the other two firearms
charges by three months to recognise the fact that Mr Williams had also committed
those offences while subject to release conditions.
[106] From the adjusted starting point of four years’ imprisonment, I will give
Mr Williams the full 25 per cent discount for pleading guilty. This brings the end
sentence for the family violence offences to one of three years’ imprisonment, which
will be cumulative on the three years and one month’s imprisonment imposed on the
charges on which he was found guilty at trial.
[107] No further adjustment is required for totality.
Result
[108] Please stand.
Mr Jefferies-Smith:
[109] On the charge of manslaughter, I sentence you to nine years’ imprisonment.
On each of the five drugs charge to which you have pleaded guilty, I sentence you to
two years’ imprisonment to be served cumulatively on the sentence of nine years’
imprisonment. That means the total sentence imposed on you today is one of 11 years’
imprisonment.

 [110] I am not imposing a minimum term of imprisonment or MPI. No MPIs were
imposed in the cases to which I have been referred. You have a limited criminal history
for violence related offending and told your counsel you would plead to manslaughter,
thereby, acknowledging your wrong.
Mr Williams:
[111] On the charge of unlawful possession of a firearm, I sentence you to 19 months’
imprisonment. On the charge of being an accessory after the fact to manslaughter, I
sentence you to 18 months’ imprisonment to be served cumulatively on the sentence
of 19 months’ imprisonment. That means the sentence imposed on you in respect of
the two charges on which you were found guilty at trial is three years and one month’s
imprisonment.
[112] Turning then to the family violence charges. I sentence you to three years’
imprisonment on Charges 7 and 8 and concurrent sentences of one year’s
imprisonment on Charges 1 to 6. The sentence of three years’ imprisonment is,
however, to be served cumulatively with the sentences totalling three years and one
month’s imprisonment imposed on the charges from trial. That means the total
sentence I impose on you today is one of six years and one month’s imprisonment. I
do not impose a minimum term of imprisonment or MPI.
[113] I make an order for destruction of the firearm and ammunition produced at
trial.
[114] Finally, I make a protection order against you in favour of your former partner
and her son in terms of s 123B of the Sentencing Act 2002.

________________________________
Woolford J