R v Bevan

[2012] NZHC 2969

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2011-031-739 [2012] NZHC 2969

THE QUEEN

v

TUAINE LLEWELLYN BEVAN

Hearing:         8 November 2012

Counsel:         B Vanderkolk for the Crown

C Stevenson for Tuaine Bevan

Sentence:       8 November 2012

SENTENCING REMARKS OF MALLON J

Introduction

[1]      Mr Bevan, you need to stand up now.  You are here for sentencing following your conviction at trial of the manslaughter of your partner, Stacey Lake.1   The jury acquitted you on the charge of murder.

[2]      You are also to be sentenced on a charge of possession of cannabis for sale2 and unlawful possession of a firearm.3     You had earlier pleaded guilty to those charges.

1      Crimes Act 1961, ss 150A and 177.

2      Misuse of Drugs Act 1975, ss 6(1)(f) and 6(2)(c).

3      Arms Act 1983, s 45(1)(b).

R v BEVAN HC PMN CRI-2011-031-739 [8 November 2012]

Circumstances of offending

Manslaughter

[3]      At about 4pm on 8 May 2011, you pointed a sawn off rifle at Stacey’s head while she lay on the bed in the bedroom of the house you shared.  When you pulled the trigger the muzzle of the rifle was at close range.  The evidence was that it was pointed somewhere between 5 to 20 centimetres, and most likely 10 centimetres, from Stacey’s head.  The rifle was discharged and Stacey suffered a single gunshot wound to her left temple from which she later died.  The jury verdict means that they accepted as a reasonable possibility that you thought the gun was safe because you had removed the magazine.

[4]      Stacey Lake was aged just 23 years at the time she died.  She was the mother of two children, then aged three and five years old.  Her five year old son was in the house, in an adjoining room, when you shot her.   You had met Stacey at a New Year’s Eve party at the end of 2006 and had been in a relationship with her since then.  You are the father of the three year old.  You and Stacey had moved into the house together some months before her death.

[5]      The background to this shocking end to Stacey’s life, was a domestic dispute between the two of you which began on Thursday 5 May 2011.  Stacey had been out with her friends during the day and planned to go out with them that evening to a local pub where there was a “free roll” for poker.  You objected to this plan and told her she needed to be home to look after the children that evening.  You went out in the evening for a period and when you came back Stacey had been drinking wine. An argument developed between the two of you, in the course of which you gave Stacey a black eye.

[6]      Stacey was very upset by this.  In the morning Ms Lake expected you to be apologetic but you were not.   You were yelling at the children and this upset her more. She told you she wanted you out of the house.

[7]      Stacey then headed off to spend the day with her sister and her friends.  She showed them her black eye and told them that she wanted to drink alcohol because she was upset about what had happened.   The group spent the day having a few drinks, playing the pokies at the pub and putting some bets on through an internet TAB account.  Later in the evening they went back to a couple of pubs.  By this stage Stacey was  rather  drunk  and  talking  to  her  friend  about  what  to  do  about  her relationship with you.  Later Stacey and some friends went to a party until the early hours of the morning.   Stacey’s sister and friends had offered her a place to sleep when they returned from the party.  However Stacey instead sent you a text asking you to come and pick her up. You duly did so and took her back to your home.

[8]      Stacey was very hung-over on the Saturday and not much of note seems to have occurred that day. You asked her who had been at the party.  She told you. You seem not to have been satisfied with this explanation because in the course of the day you drove to the house of one of the friends she had been with, for the sole purpose of finding out who had been at the party.  The friend seemingly told you the same as who Stacey had already said.  You also saw your brother Hohepa that day.  You told him you were going through some domestics with Stacey and that Stacey wanted you out.

[9]      On Sunday 8 May 2011 you and Stacey were arguing again.  By this stage you were out of control with anger. You hit the door to your bedroom and the fridge. The latter gave you grazes to your knuckles.  You smashed eggs inside the fridge. You smashed a small purple plastic child’s chair in the lounge.  You smashed a plate in the living room.  The computer in the living room was pushed off its stand and was  on  the  floor.    You  smashed  the  top  drawer  of  a  dresser  in  the  bedroom, scratching your face in the process, and the contents of the drawer were strewn about the bedroom.  You smashed a glass beer bottle in the bedroom, and bits of broken glass were strewn across the bed.  The TV in the bedroom was swiped off a dresser and was on the ground.  Throughout this rampage you did not hit Stacey.

[10]     At around midday Hohepa called around to see you.   He wanted to see if things between you and Stacey were any better than they had seemed on Saturday. You came outside to see him.  He noticed the grazes to your knuckles and the scratch

across  your cheek.   You told Hohepa not to come in because you were having “domestics”.  You said that Stacey was “inside crying like a bitch”, that you wanted “to get a new bitch”, and that you were in the mood for “destruction”.  Hohepa said you seemed angry and upset.  At one state Stacey came outside to use the car, but you told her she was not to use the car and Stacey went back inside.  Hohepa told you not to do “anything stupid” before he left.

[11]     Stacey’s son, who had been with his father’s family for the weekend, was dropped off back to your place by his grandfather at about 2:00pm.  At this stage Ms Lake was sweeping up something broken in the kitchen area and did not get up and turn to greet the boy’s grandfather as would have been usual.  With the boy’s return to the household it was your evidence that things had calmed down between you and Stacey.

[12]     At about 2:50pm you went to the diary to get some fish and chips.  You were seen on CCTV footage shadow boxing in the diary while waiting for the fish and chips. The fish and chips were brought home but you your meal was not finished.

[13]     At some stage you drove your motorbike to collect a firearm that you had stashed  at  a  family  farm.    The  farm  was  a  short  journey  from  your  place  by motorbike.  When you were there you did not stop to talk to anyone, except to ask a younger brother if you could borrow a bag.  He found you a back pack and you put the firearm in the bag and returned to the house with it.  There was a dispute at trial as to whether this trip was made at about 3:30pm (when there was evidence from a witness that she had seen someone matching your description heading south on a motorbike – in the direction of the farm) or earlier in the day which was your evidence.

[14]     Once you had the firearm in the house you were, in your words “mucking around” with the firearm:  “working the bolt” and putting in the magazine. At about

4pm you went into the bedroom.  You had removed the magazine and had that in your left hand.  You crouched at the foot of the bed where Ms Lake was lying, and aimed the firearm at her.  You said you did this when you had gone over to tell her it was time to get up to clean up the place. You pulled the trigger.

[15]     You said that you just sort of pointed the gun at her. You just pointed it at her and thought it was safe.  You said you were not intending to threaten her when you did this because you and Stacey had resolved matters by this stage.  You said that with the boy’s return to the house you both made an effort to stop fighting.  You said that you had hugged and kissed and ended up having sex and that after that Stacey was lying resting on the bed with her eyes closed.

[16]     I am satisfied that you were pointing the firearm at Stacey because you were still angry with her, even though you were not intending to kill her.  That is the basis on which I sentence you.   I am satisfied of that on the basis of all the evidence, including that:

(a)      I consider that the witness’ evidence that you were on your motorbike heading in the direction of the farm at around 3:30pm was reliable. She was clear about the time she set off on her walk, the direction she travelled, the time it took her and the time she returned.   She remembered noticing that you were not wearing a helmet.

(b)Her evidence fits with the manner in which  you are described as having retrieved the gun and with the timing of the interrupted meal.

(c)      The state of the house at the time Stacey was shot indicates that “the domestics”  were  not  resolved  after  Stacey’s  son  had  come  home earlier that afternoon.   The evidence is consistent with an ebb and flow of arguing and anger in the course of the day.

(d)The idea that you would point the gun so closely to her head and pull the trigger and telling her in a non-threatening way that she was to clean up the house does not make sense.   Stacey did not want the firearm in the house.  You had made the mess and could have cleaned it up.   Stacey generally kept the house clean and tidy and had been trying to tidy up the house when the boy’s grandfather had returned with her son.  It is just too implausible that you would muck around

with the firearm in this way in the context of all that had occurred that day and in the way you described.

[17]     The jury had to be satisfied that you used the firearm carelessly and that this was a major departure from the standard of care expected of a reasonable person who has a firearm under their control.  Pointing a gun at this range and pulling the trigger when you were angry with Stacey even though you thought the gun was safe, is consistent with the jury’s verdict.   In the end it does not make much difference to your sentence because, even on your account, you were extraordinarily reckless to point a firearm at Stacey’s head at close range and to pull the trigger.

[18]     Your shock and grief were immediate.  Your first thought was to drive Stacey to the hospital.   But you managed to carry her only to  the conservatory at the driveway entrance of your home, where you lay her on the ground with her feet on a chair.  You were then seen and heard out in the street by the neighbours crying for help and saying that your partner was shot. You knocked on the doors of two of your neighbours but were unable to  find anyone there who answered  your  desperate knocks and pleas.  You managed to get the young woman who was returning home from her walk to the shop to help you.  With considerable bravery and calmness she followed  you  up  the  driveway  to  the  conservatory.    She  called  the  emergency services and helped you with instructions from the operator about what you needed to do to look after Stacey.  Throughout the 111 call, you were wailing and pleading with Stacey not to die.  You also told the young woman, to convey to the operator, that it was you who had shot your partner but that it was an accident.

[19]     The police, followed by the fire service and then a helicopter, arrived at the scene.  When you heard the police arrive, you went running out to get them to come in.  You told the police several times, and your father when he arrived, that you did not know there was a bullet in the firearm.   You were observed to be confused, panicked and very upset.  You were also cooperative and told the police when asked that the firearm was in your bedroom.   You were not permitted to travel in the helicopter with your partner and were arrested and taken to the police station.  Stacey died in the hospital in the early hours of Monday 9 May 2011.

Cannabis

[20]     As part of the investigation into the death of Stacey, the police searched your property.  In the garage, the police located a large amount of cannabis.  There was a large plastic container which contained  a number of snap lock bags  filled with cannabis head.  The average weight of each bag was 28 grams, the common weight or size at which to sell cannabis.  There were 11 bags which weighed 316 grams in total.  The police also located a bucket which contained shopping bags with cannabis head inside them. The cannabis in these plastic bags weighed 1058 grams in total.

[21]     There were also four drawers and two further containers containing cannabis head and cannabis leaf.  The combined weight of head in this area was 925 grams, and the cannabis leaf was 931 grams.   In total, 2299 grams of cannabis head was located in the garage.  If all the cannabis head was sold in 28 grams lots at $350, the total value of the cannabis would be about $28,730.

Firearm

[22]     The firearm was originally a .22 rifle.  It was shortened and cut down.  You say that you it was the growing of cannabis that led you to obtain the firearm.  You said that you “did not need the firearm but just got it” as the opportunity arose.  You did not say how you obtained it or who you got it from.

Victim impact

[23]     There are a number of victim impact statements before me which I have read. One is from the grandmother of Stacey’s son who was in the house when you shot his mother.   She says that she cannot begin to explain the pain of watching him “gasping and shaking and crying in terror in his sleep for months on end”.  There are also statements from Stacey’s three sisters, a step sister and their mother.  Stacey was taken from her mother on mother’s day.  Her mother still feels shock and disbelief and has needed counselling for her grief.  Stacey’s family miss her dearly.  She was much loved.  They talk of their sadness and anger at their loss of a lovely person, with so much more of her life to live, and in this shocking way.

Circumstances of the offender

[24]     You are 28 years old.  You have a daughter who is four years old now.  She resides with your mother.  You say that you are very close to your daughter and that you are focussed on taking care of her when you are released.

[25]     You are remorseful for your offending.  I have no doubt about that.  I heard and saw how you behaved on the realisation of what you had done.   I saw your remorse at trial.  You told the report writer that you cannot get over it and that “the person that you love is dead because of your foolish behaviour and the children now have no mother”.  You said that your sympathy goes out to the victim’s children and her family and “it is something that [you have to] live with for the rest of your life”. You say that you have not been able to grieve properly or talk to anybody about what happened, and that you feel lost. You say that “everything is just building up”.  The report writer recommends that you have the opportunity to attend grief counselling.

[26]     Your mother and you say that she is your main support person.  Your mother confirmed her support for you in a letter to the Court.  She says that when you were living with her, things went well for you.  She refers to some work you had at one point and how you enjoyed that and that you are a hard worker and the difficulties for you in obtaining employment when you were released from prison.  You were on the unemployment benefit at the time of the offending.  Your unemployment caused financial stress.  You told the report writer that this was the reason you were selling cannabis.

[27]     You have a number of previous convictions.  Most relevantly for the purposes of your sentencing today:

(a)       In 2004 you were convicted of aggravated robbery and sentenced to

15 months’ imprisonment;

(b)In 2006 you were convicted of male assaults female and injuring with intent to cause grievous bodily harm and sentenced to imprisonment of three years, six months.

[28]     You  were  on  parole  for  the  2006  offending  when  you  committed  the offending for which you are being sentenced today.  You also have two drug related convictions, although they are not for drug dealing.

[29]     You are assessed by the pre-sentence report writer as having a medium risk of re-offending, although the pre-sentence report writer also says her assessment is that you are at a high risk of harm to others.  The report writer notes that these risks may be reduced if you were able to obtain stable employment on your release and were to refrain from consuming drugs and alcohol.

Manslaughter

Starting point

[30]     Turning to the lead offence of manslaughter.  Sentencing for manslaughter is difficult.  No sentence I impose can bring back Ms Lake or make up for her death. As has been said by the Court of Appeal, the loss of life is invariably serious.  The sanctity of life is a fundamental value and society demands that the taking of life be met with appropriate condemnation.   But on the other hand the sentence must be related to the circumstances of the particular offence and the offender and in a

manslaughter case the loss of life is unintentional.4    There is no single guideline

judgment.  I have to be guided by other cases although the comparative exercise is never easy in manslaughter cases because the facts are always different.

[31]     The  Crown  submits  that  the  offending  would  fall  within  band  two  of R v Taueki, so a starting point of between five and ten years’ imprisonment would be warranted on that basis.5     The Crown also referred to a number of cases which indicate it submits the appropriate range here is a starting point broadly in the range of six and nine years imprisonment.  Overall the Crown submits that a starting point

of seven to eight years’ imprisonment should be adopted for the offending.

4      Solicitor-General v Kane CA154/98, 23 September 1998 at 9.

5      R v Taueki [2005] 3 NZLR 372 (CA).

[32]     Counsel on your behalf contends that the Crown’s proposed starting point is too high (although that does depend on the view that I took on the circumstances of the discharge of the firearm).  Counsel submits that the starting point represents an attempt to set the discharge of the firearm immediately within a context of violence and aggression, which it submits had been rejected by the jury.   He says that the Crown is essentially advocating for aggravating factors which are absent and not proven beyond reasonable doubt.  Your counsel says that the R v Taueki approach is unsuitable for this case and that in light of the comparable cases, a starting point of five years’ imprisonment is appropriate.

[33]     As I have earlier said, I do not accept that the jury verdict meant that the discharge of the firearm had not occurred in the context of aggression.  Their verdict indicates that there was at least a reasonable possibility that you thought that the firearm was unloaded when you pulled the trigger.   But that does not mean they accepted your account that you were no longer being aggressive and angry with Stacey at the time.  As I have said I am satisfied to the beyond reasonable doubt standard that you pointed the firearm at Stacey because you were still angry with her, even though you thought the firearm was safe when you pulled the trigger.

[34]     I therefore consider that the starting point your counsel proposed is too low when compared with the other cases.  The aggravating factors are greater than for example hunting incidents like that in R v Mears where the person had a licence for the  firearm  and  was  using  it  for  a  lawful  purpose.6      It  is  more  serious  than R v Goldstone,  a  case  which  both  counsel  have  referred  to  in  their  written submissions, where there was no element of aggression and anger and the firearm was pointed at the camera rather than being deliberately aimed at the victim.7

[35]     The Court of Appeal has said that many manslaughter cases involving the use of a firearm will attract a term of six years or more although that is not a variable.8

In my view in light of the comparable cases referred to by the Crown9 and others a

6      R v Mears HC Rotorua CRI-2010-069-2211, 2 February 2011.

7      R v Goldstone HC Auckland CRI-2009-044-10031, 28 May 2010.

8      R v O’Sullivan CA340/93, 15 December 1993; Solicitor-General v Kane at 9.

9      R v Christie HC Gisborne CRI-2003-016-6522, 28 October 2004; R v Pira HC Rotorua

CRI-2006-063-329, 13 December 2006; R v Jordan CA116/83, 23 September 1983; R v Ruru
CA371/01, 12 February 2002; R v Raivaru HC Rotorua CRI-2004-077-1667, 5 August 2005.

starting point of between seven to eight years’ is appropriate on the manslaughter charge.  The level of recklessness was very high given the anger during the day and the position, the range at which you held the firearm and where you pointed it at her, and that there was no satisfactory explanation for what you were doing.   Cross- checking that against R v Taueki the aggravating factors are the use of a weapon, serious injury (the most serious), attack on a head, vulnerability of the victim and that would put this offending well within band two.   So therefore the appropriate range is in my view seven to eight years’ imprisonment.

Personal aggravating factors

[36]     As noted above, you have previous convictions for violent offending.  You were also on parole at the time of this offending.  In view of the need for individual deterrence,10  in my view that warrants a sentence on the manslaughter charge of seven and a half years’ imprisonment before mitigating factors.

Personal mitigating factors

[37]     Your remorse for your actions was evident immediately after the offending and is confirmed by your pre-sentence report writer and you offer to attend a restorative justice meeting.  And as I have said I have no doubt that that remorse is genuine.   Before your trial for murder you were prepared to plead guilty to manslaughter.  You were prepared to do that on a set of facts which was in essence accepted by the jury.   But the case against you for manslaughter was strong, a conviction was almost inevitable and therefore taking into account those matters

your remorse, the restorative justice offer and your offer to plead guilty,11 I consider

that I should discount your sentence by 25 per cent.   That is the discount your counsel proposed and I agree with it.

[38]     I therefore adjust your sentence on the manslaughter down to five years and eight months’ imprisonment.

10     R v Taueki at [8].

11     R v Edwards [2005] 2 NZLR 709 (CA); R v Reweti HC Auckland CRI-2005-92-14652,

6 September 2006.

Minimum period of imprisonment

[39]     Before turning to the other offending I consider whether there should be a minimum term of imprisonment imposed in respect of the manslaughter offending. The Crown submits that it should be imposed.  It says that serving one-third of your sentence is insufficient to denounce and deter your offending and to hold you accountable.  Your counsel says that a minimum imprisonment period is not required considering that the basis of your manslaughter conviction was gross negligence.

[40]     I  consider  that  a  minimum  period  of  imprisonment  is  required.    Your offending was extremely reckless.   It occurred in the context of your anger with Stacey and you have not learnt from your previous sentences for violence.  I consider that if you were released after serving one third of that sentence that would be insufficient to denounce, deter and to hold you accountable for your actions on this occasion which had such serious and sad consequences.   The minimum period of imprisonment therefore will be three years in respect of the manslaughter charge.

Cannabis

[41]     I now turn to the other charges.  The cannabis offending is different in kind from  the  manslaughter  and  so  a  cumulative  sentence  for  that  offending  is appropriate, keeping in mind the principle of totality.12   Counsel agree that that is an appropriate approach.

[42]     In setting the starting point for cannabis offending, guidance is provided by the decision of R v Terewi.13    The Crown submits that your offending falls within category two, albeit at the lower end.    There was an element of commerciality in your offending.  The Crown submits that a starting point of between two years and two years and six months’ imprisonment is appropriate, taking into account the

possession of the firearm as a tool of enforcement.

12     Sentencing Act 2002, ss 84(1) and 85(2).

13     R v Terewi [1999] 3 NZLR 62 (CA).

[43]     On your behalf, Mr Stevenson acknowledges that there should be an uplift for the cannabis offending but submits that the totality principle would militate against any significant cumulative sentence.

[44]     I agree with the Crown’s starting point.   The two drug related convictions would not warrant any uplift.  But bearing in mind the totality principle, because I am  adding  a  cumulative  sentence,  and  taking  into  account  the  sentence  I have imposed on the manslaughter charge, I am going to add one year imprisonment to the starting point I adopted.

Unlawful possession of firearm

[45]     The sentence on the firearm is related to the other offending and I will impose a concurrent sentence for that.  Counsel are agreed that that is the correct approach. And the concurrent sentence will be nine months’ imprisonment on that charge.

First strike warning

[46]     The crime of manslaughter is a serious violent offence under the Sentencing Act 2002.14    Upon your conviction at the end of trial I omitted to warn you of the consequences of being convicted of any further serious violent offence and therefore I do so now.15   If you are convicted and sentenced to imprisonment for any violent offending other than murder after this warning, you will serve that sentence without parole  or  early  release.    If  you  are  convicted  for  murder  committed  after  this warning, you will be sentenced to life imprisonment and you will serve that sentence without the possibility of parole unless that would be manifestly unjust.

Sentence

[47]     Therefore on all the charges your overall sentence is six years and eight

months’ imprisonment. This is made up of:

14     Sentencing Act 2002, s 86A(21).

15     Crimes Act 1961, s 372.

(a)       On the manslaughter charge, a sentence of five years eight months’

imprisonment with a minimum period of imprisonment of three years;

(b)On the possession of cannabis charge you are sentenced to one year ’s imprisonment (which is cumulative on the manslaughter charge);

(c)       On the unlawful possession of firearm charge you are sentenced to nine months (concurrent).

[48]     Stand down.

Mallon J

Counsel:            Crown Solicitor’s Office, Palmerston North

C Stevenson, Mana