Man jailed for killing his brother with faulty, illegal shotgun September 2015
XXXXXX, 21, died after being shot in Palmerston North on May 19, 2015.
“Adolescent recklessness” is to blame for two brothers playing with a loaded illegal firearm, leaving one of them dead and the other in prison.
XXXXXXX, 21, will have to live the rest of his life knowing he killed his older brother, the High Court in Palmerston North heard on Friday.
At every court appearance he has had a reminder of the consequences of his actions, with the urn containing his brother’s ashes held either by him or a supporter.
XXXXXXXX was sentenced to two years’ and nine months’ imprisonment for the manslaughter of his older brother.
That urn was in court on Friday, when XXXXXXX was sentenced to two years’ and nine months’ imprisonment for the manslaughter of 21-year-old XXXXXXX.
Justice David Collins said only “adolescent recklessness” could explain the actions which led to a totally avoidable death.
The two brothers were at XXXXX Bradford Place, Palmerston North home on May 19 when XXXXXX came around. XXXXXX, 18, had earlier found a 60-year-old sawn-off double-barrelled shotgun in an abandoned car.
He left the shotgun and three shotgun cartridges at the house. XXXXXXX was also at the house, having travelled from Whangarei the previous day to visit family.
Many people at the home were waiting for benefit money to be paid so they could get dinner. The two brothers loaded the gun, then started posing with it and taking photos of each other. XXXXXX cocked the hammers, held the gun at his hip with his finger inside the trigger guard, and pointed it at his brother.
The right hammer then fired, the shot striking XXXXXXX in the chest.
The gun recoiled and the second shot flew into the ceiling. The brothers’ mother ran into the room and started doing CPR, but XXXXXXXX died at the scene.
Testing by police found the right firing mechanism was faulty, needing only the slightest touch to discharge. Defence lawyer Steve Winter said XXXXXXXX lived at home with his mother, who was bringing up children and grandchildren on her own. “Life is not easy for this family.”
The photos leading up to the shooting showed two brothers enjoying each others company, Winter said.
“From outside looking in, no sense can be made of the decision-making of these two brothers on this fatal day,” Winter said.
“The only explanation is that this was a chance for these two brothers to escape reality, acting out a lifestyle that might seem great on the small screen or in music.
“The brothers were enjoying time together, pretending to be gangsters and taking photos of themselves.
“They were acting out fantasies one might expect from teenagers.
“Who got hurt here was mostly a matter of chance.”
Sentencings often put the emphasis on the victims, and XXXXXXXX was one in this situation, Winter said.
“His family don’t want him to go to prison. They want to take this journey together.
“It would be highly doubtful XXXXXX would want his brother to go to jail.”
Winter asked the judge to impose home detention, but acknowledged it was “a big ask” in the circumstances.
The judge said the case was similar to that of XXXXXXXXX, who fatally shot his partner while posing for photos with a sawn-off shotgun.
While XXXXXXXX told police about where the gun came from and did not have it for protection, it was still an illegal weapon. Furthermore, he loaded it, pointed it at his brother and had his fingers on the trigger.
“You broke every single safety rule.” (Emphasis added – ED)
XXXXXXXX had left school in his early teens, had 11 previous convictions, and was on a sentence of supervision at the time of his brother’s death. The judge gave a starting point of four-and-a-half years’ imprisonment, and made deductions for youth, an early guilty plea and remorse. He said he then had to consider if two years’ and nine months’ achieved the principles of sentencing.
“It will hold you accountable for the harm to did to XXXXXXX, your family and the community.
“It will promote responsibility, denounce similar conduct, deter others, assist in your rehabilitation, takes into the account the gravity of your offending and is the least restrictive outcome.”
XXXXXXXXX threw his shoes from the dock into the body of the court before being led to the cells. His family wept. The case will properly wrap up in October, when XXXXXXX is sentenced for unlawfully possessing the sawn-off shotgun.
They act before they think, almost pre-programmed to shoot on reflex – Hamish Carnachan investigates the campaign to stop hunters killing each other in the bush.
INVESTIGATE: JUL 03
They act before they think, almost pre-programmed to shoot on reflex – Hamish Carnachan investigates the campaign to stop hunters killing each other in the bush
On Easter Sunday a young Hamilton man, out deer- stalking in the Kaimanawa Ranges, shouldered his rifle, placed the crosshairs over what he thought was the hindquarters of a deer, and squeezed the trigger. It took barely a split second for the high-powered projectile to travel the 20 metres to its target. But, in a blink of an eye that one bullet took one life, shattered the lives of many, hammering home in the harshest possible way the tenuous grasp of an individual’s existence.
Christopher Martin Davies had made the most fundamental error a hunter can make, a basic error of judgement that was to have catastrophic and lasting consequences far beyond the simplicity of that lethal act – he failed to correctly identify his target.
The tawny-coloured object Davies thought was a sika deer meandering through the scrub turned out to be a fellow deerstalker. By the time he had made that critical assessment though, it was too late for Taupo father Mark Leathwick. The hunter had become the hunted. Davies’ fateful shot slammed into Leathwick’s head killing him instantly, and making media headlines almost as quickly.
This tragic episode was to be the latest in a string of hunting related accidents over the month of April, and the third fatal shooting in as many weeks in the central North Island. Nine days prior to the death of Leathwick, Hamish Harland was shot dead by family friend and hunting partner David Webster Alker in Tongariro National Park, which followed the death of Mangawhai resident Peter McIntyre who was shot in the Urewera National Park at the start of the month. Over the same period, two South Island men were also hospitalised after being accidentally shot in separate hunting incidents – more would fall in the following days. And, only late last month, a 19-year-old man was killed by a member of his own party while hunting wallabies in South Canterbury.
These victims are among the more than 30 000 Kiwi hunters who will enter the bush this year to participate in what is normally one of the safest forms of outdoor recreation. But instead or returning with a trophy or yarn about the one that got away, they unwittingly join a list of casualties that many say could have been avoided.
Now, after one of the worst starts to the season on record, the public, police and shooting organisations are all hunting for answers: Why are good keen men continuing to kill each other in pursuit of leisure? How do you mistake a man for a deer? And, with three more families grieving the loss of loved ones, what can be done to prevent further tragedy and heartbreak?
On average, since 1979 there has been one accidental shooting of a hunter by another hunter every nine months. Over the past two years, Inspector Joe Green has studied every one of these cases. While his report is currently being peer reviewed and is not scheduled for public release until mid-July, he was willing to share some of his findings with Investigate.
Though he likes to emphasize that the number of hunting fatalities remains relatively low compared with other recreational pursuits, Green’s research still highlights some worrying aspects – in almost every case there has been a failure to correctly identify the target shot.
What makes this concerning to many, and “downright puzzling” to Green, is the fact that these hunters appear to have forgotten the very basics of firearms ownership and indeed arms-control law. One of the golden rules in the ‘Firearms code’ – the manual which all prospective gun owners must study to pass the licensing test – is ‘clearly identify your target’.
Every year there are reported cases of accidental gun discharges causing injury, and occasionally death, but Green says by far the most common cause of death in the incidents he studied has been one person shooting another person. There are a number of factors behind why this occurs but in most cases he points out that it is because “shooters seem to shoot at shape, sound or colour”, breaking the simple rule which has resulted in at least two of the fatalities this year.
No one can doubt that when a hunter shoots another hunter it is a ter-rible mistake, but the question persists: Why do they forget such a basic rule? It’s the equivalent of a driver completely forgetting that they have to stop for a red light (which is quite different to purposely running the signal).
An important factor, according to Green, is a little-known phenomenon he refers to as “buck fever”, which he describes as “a psychological state whereby the hunter’s desire to shoot their quarry is so strong that it overrides all rational thinking”.
Speak to any hunter and they will invariably detail the concentration, often required for hours on end or even days, which goes into stalking a deer. Nerves are taut, the atmosphere intense, it’s all part of the primal thrill of the hunt. Green says when a hunter is “wound up” during the chase any unnatural distraction can draw a snapshot, in some cases with tragic consequences.
Bob Badland, who heads the Firearms Safety division of the New Zealand Mountain Safety Council, also accepts that buck fever has played a large part in the fatal shootings but suggests that identifying the issue is a lot easier than combating it.
“I’ve been to coroners’ hearings and the shooter always describes it very slowly when they recall the incident but when it actually happens, it is in an instant,” says Badland. “It’s almost a tunnel vision, but we don’t know how to prevent it kicking in.”
And the president of the New Zealand Deerstalkers Association, Trevor Dyke, is in collusion too.
“How are you supposed to stop an irrational action affecting a sane person?” he asks. “The eye sees something and in a flash the brain fills in the missing pieces. We’re always bringing home the message about the importance of identifying your target so what more can you do?”
But it’s somewhat surprising then that there is not even a semblance of discussion about such a vital issue anywhere on the association’s website. Dyke argues that’s because “they’ve had technical problems” but hastens to note that he has written a column on the topic for the upcoming issue of Hunting and Wildlife – a quarterly magazine produced for association members.
However, he says there has been a noticeable lack of warning in other media prior to “the roar” – the deer-mating season.
“Usually press packs put together by the police and other organisation are sent out to all the [outdoor orientated] magazines. It didn’t happen this year.”
Badland disagrees. The Mountain Safety Council’s Firearm Safety section, funded by the police, is tasked with that job and he says every year the message is “churned out regardless”.
“We spend a good portion of our budget targeting hunters – we have the safety message on every item we produce.”
In fact, the Mountain Safety Council has some 15 firearms safety publications, and another one due for release soon. It even has plans for “something a little different” – a wallet-sized hologram card with an image of a hunter superimposed over that of a deer. It’s imagery with a clear message, ‘Shoot; don’t shoot’, but whether or not it will make any more difference than the other safety resources seems dubious. Though it’s not to say he is giving up, even Badland has his doubts.
“We just have to keep trying to get the point across.”
The Mountain Safety Council also runs various hunter education courses in an effort to hammer the point home. One such module is the Hunter National Training Scheme (HUNTS), a programme operated by the Deerstalkers Association. For a fee of around $140, new hunters are tutored in the basic knowledge and skills required for shooting in the New Zealand outdoors.
Of the hunters involved in accidentally shooting another person, Green discovered that all but one of them had not completed any hunting-specific training. So would making such courses a requirement of the gun-licensing regime have any effect on the number of accidental shootings?
He says it’s something he has pondered in the past, but still has serious reservations about making it compulsory. There are around 240 000 firearms licence holders in New Zealand and because only a small proportion of them are deerstalkers, Green believes the training would be wasted on most.
“The best way to encourage people to do it is to make it more accessible by lowering the cost.”
Then maybe compulsory gun club membership and requirements to regularly attend refresher courses in firearms safety is an option? Perhaps not. The mere mention of increased legislation has gun owners up in arms – figuratively speaking.
“We’re already heavily regulated,” cries Dyke. “I can’t see how much more tightening-up you can do. At any rate, if they were forced to join a club you’d probably find $5 overnight deals springing up all over the place, actually achieving nothing other than a means of getting around a law.”
Even Badland agrees that stringent regulation wouldn’t be the magic bullet.
“Hunters hate it when this happens because it brings the spotlight down on arms control issues but regulation is not the answer. Look at the number of murder victims that have been shot – legislation hasn’t stopped that.”
Presently, anyone who wants to take a firearm onto the conservation estate can pick up a permit from the Department of Conservation (DOC). Unlike privately owned hunting blocks, where hunter density is strictly kept low, there is no limit to the number of permits issued by DOC. In fact, under the Pest Management Strategy, DOC has set a clear mandate to destroy unwanted organisms, like deer, and actively encourage hunters to help carry out that task. Consequently though, questions are starting to be raised about whether the number of deerstalkers in some areas is getting dangerously high.
Dyke recalls one expedition into the bush near Taupo where there were more than 30 hunters in a block of only a few hectares.
“Your chances of bumping into another hunter in conditions like that are pretty high, we did and the other guy had no idea we were there.”
Over the period of March to June this year approximately 1000 hunters entered the Taupo/Tongariro estate, which comprises an area of 220 000 hectares. Clearly that’s plenty of space for each deerstalker – if they were separated into individual blocks. They’re not though and that is the perceived problem with the current permitting regime.
Is hunter density the issue? Again, it seems it isn’t specifically the case, and again this highlights the fact that there may not be any simple solution. In some of the most heavily hunted areas of Marlborough, where no permit is required, there has never been a fatal shooting. Likewise, Stewart Island doesn’t have a problem despite the fact that, with its world-renowned whitetail deer herd, some hunters say more guns pass through the area than anywhere else on Earth.
But, as Dyke suggests, “Hunters being hunters, they like to shoot in twos and threes and fours.” And Green’s studies highlight that nearly 65 percent of the time the deceased and the shooter are from the same party.
“In most cases they decided to split up into agreed areas but one of them has ended up straying into their companion’s zone,” says Green.
Still, whether it’s a mate or a stranger, they’ve failed to abide by that same golden rule. That’s why Badland is critical of DOC and raises the issue of “landowner responsibility”. He says aside from a sentence in fine print on the back of the hunting permits, the department does little to promote the safety message.
“What the hell are the Department of Conservation doing? They don’t put a lot of publicity out there but it’s people being shot on their land. They expect us to do their job for them.”
It’s not like Badland’s section can afford to go it alone on promoting the safety issue either. While the New Zealand Mountain Safety Council “is funded by ever decreasing lottery grants”, the firearms division is funded solely by the New Zealand Police. Badland is expected to fire the safety message, among other tasks, at nearly a quarter of a million gun license holders with only $140,000 a year.
“We do the best we can”, says Badland, but he is concerned at rumours that DOC plans to scrap the permitting system altogether. If that happens, hunting on conservation estate becomes a self-regulatory practice and that, he says, raises further serious concerns about safety.
Though there are numerous and varied recreational user groups that enjoy leisure activities in the wilderness, it is still hunter safety that is the greatest concern. The statistics show that hunters shoot hunters. Experts suspect this is because they move carefully through the bush like their prey and even sound the same – hunters will often mimic the roar of a stag to entice it closer. Davies was reportedly following the sound of a sika stag just before he saw movement and snapped a shot off at Leathwick. The general consensus among deerstalkers is that it was the victim who was calling.
Laws similar to those in the United States, requiring hunters to wear portions of highly visible clothing, have been floated here as a possible means of preventing hunters being shot in this way. But both Leathwick and Harland were wearing brightly coloured clothing, specifically to avoid being mistaken as deer. In a bitter irony, Davies bullet even went straight through Leathwick’s “blaze orange” cap. Harland had the same ‘protective’ colouring across the top half of his bush jacket.
In the US almost all hunters (only excluding those targeting turkey) have been required by state law to wear “blaze orange” during firearm deer seasons since 1987. But while the number of overall hunting fatalities has decreased, Green says the latest research from Virginia shows that the legislative requirements have had no impact on the number of deer hunters accidentally shot. And that’s diplomatic compared to what some critics believe – they suggest the rate has actually risen.
“I think high visibility orange might be a protective factor in some instances, but in others cases it might even be a contributing factor,” says Green. By that he means a highly visible flash of colour could actually attract a hunter’s attention and draw a hasty shot.
As part of his research into hunting related fatalities, Green has also carried out experiments with different shades of brightly coloured clothing in the bush. He concludes that in various levels of light, and different environments, bright orange might not always be the most suitable colour – from a distance it can appear to be a reddish hue. That just happens to be the same colour as the hide of a red deer – the most numerous and widely dispersed species in New Zealand. Scary given that almost all hunter protective clothing uses “blaze orange”. Now there are a whole host of hunters tearing around in the forest thinking they’re safe, yet they could inadvertently be wearing a ‘bulls-eye’.
“We’re still encouraging hunters to wear bright colours, but we’re telling them to make sure that what they wear contrasts with the environment they’re hunting in.”
Green believes that a shade of light blue, like that worn by United Nations troops, is likely to provide the most obvious distinction in the forest. This is precisely why Badland hopes a Coroner “won’t rush in” and force New Zealand to follow America’s lead, at least until more studies have been carried out.
Research into ‘protective’ colours and alternative identification techniques are ongoing – with some unusual collaboration too. Badland says the police and the Mountain Safety Council are investigating work currently being carried out by the Land Transport Safety Authority and the military.
Overseas, armed forces are endeavouring to develop effective personal identification devices to prevent loss of life through ‘friendly fire’, much like a warning alert sounded if a shooter targets their own troops. Meanwhile, road transport agencies are working on ‘glow in the day’ signs. Both initiatives could potentially be applied to hunters says Badland.
“How many road signs do you reckon you passed on your way to work this morning that you didn’t notice or understand the message?” he asks. “We have to keep pushing the safety message to hunters, like the police keep pushing their road safety campaign. But, like drivers on the road, it’s still up to the person in control to make that vital decision. If we can make the signs any less confusing then it’s got to make them safer.”
Despite the publicity given to hunting accidents, hunting is still among the safest outdoor recreation sports. It’s a fact that everyone who spoke toInvestigate has hurriedly pointed out in one way or another. There’s no doubt that the motoring industry, with all its advances in safety, would love to have hunting’s accident rate. Dyke says the number of shootings this season have just been “a glitch” and others, well they say that basically you’re more likely to be struck by lightning than be shot.
But, as Badland says, “At the end of the day it will happen again and we’ll ask ourselves the same question – what more can be done?” And that means, again, some unfortunate family is still going to have to make sense of a senseless tragedy – that their loved one has become another “statistic” to a split-second error.
As for the shooters in the latest tragedies, Davies and Alker have both been jailed for nine months. The men were sentenced in the Taupo District Court on 20 May after each admitted carelessly using a firearm causing death. Judge Chris McGuire also ordered Davies and Alker to pay $5000 each in reparation to the victims’ families. Davies is likely to appeal his sentence, but Alker has ruled out that option – he has publicly stated that after shooting his best mate he now carries a life sentence.