R v Lewis
[2015] VSC 252
•17 March 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BENDIGO
CRIMINAL DIVISION
S CR 2014 0125
| THE QUEEN | |
| v | |
| DARREN LEWIS | Accused |
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JUDGE: | T. FORREST J |
WHERE HELD: | Bendigo |
DATE OF HEARING: | 16 March 2015 |
DATE OF SENTENCE: | 17 March 2015 |
CASE MAY BE CITED AS: | R v Lewis |
MEDIUM NEUTRAL CITATION: | [2015] VSC 252 |
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CRIMINAL LAW – Sentence – Murder – Joint criminal enterprise - Objective criminality high – Although offender neither initiator nor driving force of agreement, offender was active participant in lengthy, brutal and cowardly attack – Moral culpability high and aggravated by burning of deceased’s body – Methamphetamine use and addiction – Some evidence of remorse – Plea of guilty – Utilitarian discount – Discount for undertaking to give Crown evidence against co-accused – Convicted and sentenced to 10 years nine months’ imprisonment with a minimum period before parole eligibility of eight years and three months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms L. Taylor QC with Ms R. Harper | Vaille Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Mr D. Dann | Valos Black & Associates |
HIS HONOUR:
Darren Lewis, you have pleaded guilty to the murder of William Stevenson on Christmas day 2013. The circumstances of your offending are as follows.
Mr Stevenson lived for the last months of his life in his Kerang unit. Intermittently, your co-accused, Danielle Kerr, lived at that unit. It seems that their relationship was, at times, volatile. In mid December 2013, whilst she was still residing at Mr Stevenson’s unit, you and she met and shortly thereafter commenced a relationship.
On Christmas eve, Mr Stevenson joined you and Ms Kerr at your farm at Wellsford. You all used ice (methylamphetamine) and consumed alcohol. Mr Stevenson was required to work on the morning of Christmas day. You and Ms Kerr drove with him in his car to his workplace near Pyramid Hill. You dropped him at work and departed in his car, having arranged to pick him up when required.
As events turned out, you did not pick him up, despite the fact that you had borrowed his car. This appears to have infuriated Mr Stevenson. A friend, Donna Stewart, picked him up from the side of the road and took him to her property. At this stage, according to Ms Stewart, he was fuming. You and Ms Kerr eventually went to that property. Mr Stevenson was still irate. You described him in your recent statement as jumping up and down and swearing. He threw his already broken mobile phone at Ms Kerr.
You, Ms Kerr and Mr Stevenson left Ms Stewart’s property. She described Mr Stevenson at this stage as yelling abuse at you and Ms Kerr.
In a covertly recorded conversation with Detective Birch, you said that Ms Kerr hated Bill. You said that before going to Donna Stewart’s, you pulled into a parking bay at Pyramid Hill. Ms Stewart asked you if you would help her to kill Mr Stevenson. You said she wanted to know what it was like to kill someone. You said nothing for a time, but subsequently agreed with Ms Kerr that you would help kill Mr Stevenson. You said to Mr Birch you were there to watch, just in case Bill overpowered her. By this, I infer that as part of the agreement you were prepared to assist Ms Kerr in the event that Mr Stevenson got the upper hand. You then described to Mr Birch what you saw and did.
You had parked Ms Stevenson’s vehicle on an isolated dirt road. Your intention ostensibly was to defecate. I am unclear as to whether this was a genuine intention or a pretext devised by you and Ms Kerr. I now quote selectively from your covertly recorded conversation:
… I was walking back to the car and she whacked him with a rock, and then Bill got up and ran for the car and I had the keys on me.
He was sitting for a while and – oh, and she stabbed him in the throat and then Bill took off and we got in the car and I drove the car (to) through the bush not – I didn’t run over him or nothing. And fucken ... yeah she just flogged him and rocked him.
Yeah, yeah. He had blood pouring out of his throat and she flogged him. … Yeah, she – yeah she rocked him and flogged him.
A little while earlier, you had told Mr Birch (697) that you had hit Mr Stevenson with a stick once. This was after you caught up with him in the car:
I thought he was dead, but he wasn’t. And yeah she – she whacked him, I dunno how many times, on the head with – with the stick and … that – that killed him …
It is unclear to me whether Mr Stevenson was alive when you hit him. In the covert conversation you indicate that he was alive although in your recent statement you suggest otherwise. I doubt that the answer makes any material difference to the sentence I will shortly impose.
When asked why you hit him, you said:
I dunno why I done it. I don’t know.
I helped drag him over to the car and we both lifted him into the boot because of me back. Me fucken back was killing me.
You then told Mr Birch that you then drove back to the farm with Mr Stevenson’s body in the boot. The car was by then in a poor condition. At night, you drove the car and Mr Stevenson’s body to a location only a few kilometres from your farm. You poured petrol onto it and set fire to it. You singed your arm during this process.
Some days later, but before New Year’s Day, you returned to the burnt out car, removed most of Mr Stevenson’s remains and placed them in another location.
The above factual findings are largely derived from the covert recording and have been confirmed by you in a witness statement sworn on 13 March 2015. In that statement you have added more detail, particularly about the fatal attack upon Mr Stevenson. The knife used by Ms Kerr was a large hunting knife. After Mr Stevenson was initially hit with the rock he made his way to the front seat of the car. It was there that he was stabbed by Ms Kerr perhaps on half a dozen occasions to the face and to the right side of his throat. He managed to escape and ran through the bush. It was then that you drove after him.
I propose to sentence you on the following bases:
(a)You formed an agreement with Ms Kerr to kill Bill Stevenson.
(b)You were neither the initiator nor the driving force behind this agreement or its implementation.
(c)You participated yourself and assisted Ms Kerr in a quite lengthy, brutal and cowardly attack upon Bill Stevenson.
(d)You assisted in concealing the crime by burning the car and Mr Stevenson’s body, removing and relocating some of Mr Stevenson’s remains and concocting with Ms Kerr a false exculpatory account.
I regard your objective criminality as high. This was not a spontaneous act of madness. The killing of Bill Stevenson was planned. You had time to consider whether to participate and whether to withdraw. When the deceased tried to escape, you drove after him. You struck him with a stick during or just after a flurry of blows struck by Ms Kerr. You were there at all times to support her in this murderous attack. I accept that your level of culpability is not as high as your co-accused, but I still regard it as high. I also regard it as aggravated by your subsequent participation in the burning of the deceased’s body.
Background
I turn to your background. For a 47 year old man facing the most serious charge in the criminal calendar you have had very limited prior involvement with police. I regard your 27 year old marijuana, theft and receiving stolen goods convictions as having no practical relevance to this sentencing task. Neither is there any relevance to your single 1995 excessive mass truck driving conviction. In 2011, at the age of 43 you were living with a man who received some drugs in the mail from the UK. When your house was searched police found some cash ($700 app.) in your possession that they suspected was the proceeds of crime, some ecstasy (MDMA) and some cannabis. The upshot of all this was that you were placed on a Community Based Order (CBO) with a 40 hour unpaid community work component, and your were fined with convictions a total of $1000. That is the sum total of your criminal history. I do not regard it as having any practical impact on this sentencing exercise other than to confirm that by 2011 you were using drugs and mixing in like minded circles.
You were born in Bendigo and raised from the age of 4 in Geelong. Your parents both worked and you left school at Year 8 level. Thereafter you have worked a variety of manual jobs, mostly as a truck driver from about the age of 20. This employment seems to have been regular, if not continual, until you, with your then wife, took over the Road House at Nhill from about 2002-2005. That relationship broke down in 2005 and you went back to truck driving.
You have had a number of significant relationships in your adult life and you have 4 daughters from 3 different relationships. Two of your daughters were the product of your marriage to Cherie Taylor. Your daughters are now 24, 22, 19 and 11. I am told that you keep in phone contact with them. The most significant relationship that you have had in recent years has been with Ms Leanne Quill. This commenced 8 or 9 years ago and has proceeded intermittently since. Ms Quill was present in court and a reference authored by her was tendered on your behalf. She speaks of your generosity and kindness as her partner and friend.
In 2008 you injured your thumb at work and it was subsequently partially amputated. You returned to work but in 2012 sustained further injuries. A serious hamstring injury cleared up over time but you were also observed upon an MRI scan to have minor discogenic signal alterations in the lumbar spine together with severe degenerative hypertrophic facet joint change at L4/5 and less severely at L5/S1. Whatever be the aetiology of your back pain I accept that you genuinely suffer from it and that it is now chronic. You referred to it during the course of your covertly recorded conversation with Det. Birch. I consider it likely that your low back pain will make the prison sentence that I will pass shortly slightly more onerous for you in that you will feel and perhaps be more vulnerable than otherwise. I have endeavoured to reflect this in the sentence.
Victim Impact Statements
The victim impact statements of Bill Stevenson’s mother, sister, brother and daughter were read to the court. They have lost a much loved family member. Their grief is profound and palpable. Words can’t really do it justice. I take their suffering into account.
Remorse
The belated nature of your plea does not bespeak remorse. You only pleaded guilty to murder after the application to exclude your confession was rejected. Having said that, I have listened to the audio of your covertly recorded confession. I consider at that stage you were genuinely sorry for what you had participated in and not simply regretful for your predicament. That remorse, however, was not immediate. You had already given the police a false story that had been settled between you and Ms Kerr. Shortly after the confession, you received legal advice and thereafter exercised your right to silence. I am also prepared to infer remorse from your decision to cooperate with the authorities. I shall return to this.
I also detect some remorse from the fact that in April 2014 you directed police to the remains of Mr Stevenson. This may assist in providing his family with some comfort.
Plea and cooperation with authorities
You are entitled to a discount on the otherwise appropriate sentence for your plea of guilty. You have saved the community the time and expense of a trial and witnesses have been spared the ordeal of giving evidence in your trial. I indicated in discussion with counsel that it was highly likely that I would have acceded to the foreshadowed separate trial application made on behalf of Ms Kerr and so your plea has saved the community and witnesses from a full trial and not some portion of a joint trial.
Your cooperation with authorities in making a witness statement and undertaking to give sworn evidence in Ms Kerr’s trial entitles you to a substantial sentencing benefit. It is, I consider, a genuine demonstration of remorse. Sentencing courts must also offer significant incentives to those considering the course that you have taken. It is not an easy course, but it is a decent one. By throwing your lot in with the community, you may well have to spend some or all of your prison time in some form of protective custody, although I cannot identify any particular risk to you above and beyond that which attaches to all prisoners who give Crown evidence. I consider that the level of your assistance is appropriately characterised as high. Your evidence adds substantially to the body of evidence to be adduced by the Crown at Ms Kerr’s trial. I consider your plea and the assistance you have offered to be intertwined and I shall moderate the sentence I would otherwise impose substantially to reflect these factors.
Other factors
That is not to say that there is no place in this sentence for factors such as general deterrence, denunciation and punishment. There is, but their impact will be moderated by the course you have taken. The sentence I impose must also be proportionate to the gravity of your offending. I do not lose sight of the fact that an apparently decent, hardworking man has been taken from us in a cowardly and totally unnecessary way. As I have said I regard your objective criminality as high. The sentence that I impose must be seen as punishing and denouncing your conduct as well as having a deterrent effect on others. I doubt that there is a need for specific deterrence and I regard your prospects for rehabilitation as reasonably good.
Conclusions
This is a difficult sentencing exercise. On the one hand, you were an active participant in the pre-planned, thrill killing of Bill Stevenson. You are jointly responsible for ending a man’s life – a man with whom you had no quarrel – and condemning his family and friends to inestimable grief. On the other you have little in the way of past criminal history; you do not seem to be of a violent disposition and have reasonably good prospects for rehabilitation; you have pleaded guilty; and most importantly you have agreed to give evidence in the prosecution case against Ms Kerr.
Stand up please Mr Lewis.
On the charge of murder I convict you and sentence you to 10 years’ 9 months’ imprisonment with a minimum period to be served before parole eligibility of 8 years 3 months.
Section 6AAA of the Sentencing Act 1991 requires that I state the sentence and the non-parole period that I would have imposed but for your plea of guilty. In a case such as this where your plea is inextricably bound up with your undertaking to give Crown evidence, in my view s 6AAA must countenance an indication of the sentence I would have imposed but for your plea of guilty and your undertaking. The reason for this is simple: but for your plea of guilty, you could not have undertaken to given crown evidence and would have received no sentencing discount on account of your doing so. I propose to make such a statement.
But for your plea of guilty and your undertaking to give Crown evidence I would have sentenced you to 18 years’ imprisonment with a minimum non-parole period of 14 years.
So that means Mr Lewis that I have sentenced you to 10 years’ 9 months’ imprisonment with a minimum to be served before parole eligibility of 8 years 3 months.
I declare that you have served 440 days inclusive of today by way of presentence detention.
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