R v Smith

[2025] NZHC 2463

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-090-002453

[2025] NZHC 2463

THE KING

v

ELIZABETH LYNN SMITH

Hearing:	27 August 2025
Appearances:	B D Tantrum and J T Lowyim for the Crown J M Hudson for the Defendant
Judgment:	27 August 2025

SENTENCING NOTES OF POWELL J

R v SMITH [2025] NZHC 2463 [27 August 2025]

[1]    Elizabeth Smith, you appear for sentence today having pleaded guilty to a single charge of manslaughter.1 The charge followed an incident on Thursday, 13 June 2024 in which you ran over and killed Dean Fifield on Moire Rd in Massey.

The offending

[2]    I begin by summarising what happened to bring you before the Court today. As I have discussed with counsel, in addition to the summary of facts, I have also considered the formal written statements of Luke Falconer and Cameron Hogg to better understand the circumstances of the offending.

[3]    There is no dispute that you and Mr Fifield had been in a relationship that ended shortly before 13 June. When it ended you moved out of his home, but your possessions remained at the property.  You  attempted to make arrangements with  Mr Fifield to pick up your stuff, and when this was unsuccessful sought the assistance of police on 13 June 2024, assistance which was not forthcoming.

[4]    Later that evening, you appear to have been invited by Mr Fifield to come and pick up your property. Before going around to Mr Fifield’s house you told two friends, Mr Falconer and Ms Hogg, who had been available to help earlier that day, what you were going to do. You agreed with Mr Falconer and Ms Hogg that if you had not made contact with them by 9.40 pm then something was wrong. As they did not hear anything from you, they too went to Mr Fifield’s house, arriving around 11 pm. They drove up Mr Fifield’s driveway and saw your car was parked next to his house facing back down towards the road. Mr Falconer walked up to the house and located you talking to Mr Fifield in the lounge. Mr Fifield does not appear to have been happy at this development and matters were clearly tense. However, shortly thereafter you and Mr Falconer were able to remove a chest containing some of your possessions which was loaded into the boot of your car. The removal was completed without violence although there does appear to have been some pushing as the chest was taken out of the home.

1      Crimes Act 1961, ss 171, 160(2)(a) and 177(1). Maximum penalty: life imprisonment.

[5]    The tension between those present was  evidenced  by  the  fact  that  both  Ms Hogg and Mr Falconer armed themselves at different points with a bat as they were preparing to depart. You got into your car and Ms Hogg and Mr Falconer got into theirs, but as they went to reverse down the driveway Ms Hogg became concerned you had not started your car and went to check on you. She offered to move the car for you but you declined and noted you could lock the doors if necessary.

[6]    Just as both cars started moving Mr Fifield emerged from his home to confront you all. He started to follow Mr Falconer’s car. He started hitting the windscreen repeatedly and eventually cracked it when the vehicle was stationary for a period.

[7]    Mr Fifield continued to follow Mr Falconer’s car as it reversed out of the driveway and onto Moire Road and was able to strike the passenger window adjacent to Ms Hogg. Mr Falconer said Mr Fifield then moved around the front of his car. By this time you had driven your car down the driveway. You turned out onto Moire Road and drove directly into Mr Fifield  while  he  was  alongside  the  driver’s  side  of Mr Falconer’s car. He was initially carried onto the bonnet of your car before falling forward and getting trapped under the vehicle.

[8]    Emergency services arrived a short time later and used equipment to remove Mr Fifield from under the car. He was pronounced dead at the scene by the attending paramedics.

[9]    Mr Fifield’s death has had an understandably devastating impact on his family and friends, and I once more acknowledge you all this morning and in particular  Mrs Scown, Mr Fifield’s mother, Aran Fifield, his brother and Georgia Fitzgibbon, his daughter, who have all given victim impact statements this morning.2 As you have heard, those statements have conveyed the shock and powerlessness that Mr Fifield’s family felt as a result of the way in which Mr Fifield died, as well as for the shared future that they have all lost.

2      At the request of Mrs Scown at the outset of the sentencing, and without opposition from the media present in Court, I made an order pursuant to s 205 of the Criminal Procedure Act 2011 suppressing publication of the contents of her victim impact statement.

[10]   While nothing can heal the pain for Mr Fifield’s family and friends, and I am sure you will all continue to endure that on a daily basis, it is hoped that today’s sentencing will bring at least some closure to what has been a lengthy and very difficult process for you all. Again, I acknowledge you all.

Approach to sentencing

[11]   I turn now to the approach that I must take in sentencing you  this morning.3   I note first that I must take account of the general purposes and principles of sentencing as set out in the Sentencing Act 2002.

[12]   In respect of the purposes of sentencing, the sentence I impose is intended to hold you accountable for the harm that you have caused to Mr Fifield and his family and to promote within you a sense of responsibility for that harm.4 The sentence is also intended to denounce your conduct and to deter others from offending in the same way.5

[13]   As to the principles of sentencing, I note in particular I must take into account the gravity of your offending and your degree of culpability.6 I also recognise the need to take into account the seriousness of your offending,7 the consistency with appropriate sentencing levels in other cases,8 your personal background,9 and the effect of your offending on Mr Fifield and his family.10

[14]   Setting a sentence involves two principal steps.11 First, I must indicate what the starting point offending of this kind attracts. This involves an assessment of the aggravating and mitigating factors of your offending, that is the matters that make the offending more or less serious, and a comparison with the starting points used in similar cases. Second, I will take account of any factors personal to you to determine

3      Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [45]–[46] provides the two-step methodology of sentencing.

4      Sentencing Act 2002, s 7(1)(a)–(b).

5      Section 7(1)(e)–(f).

6      Section 8(1)(a).

7      Section 8(1)(b).

8      Section 8(1)(e).

9      Section 8(1)(i).

10     Section 8(1)(f).

11     Moses v R, above n 2, at [46].

whether the starting point should be increased or decreased. I will then complete the sentencing process by considering whether a minimum period of imprisonment and/or a period of disqualification from driving is necessary in this case.

Starting point

[15]   I begin with the starting point. Manslaughter carries a maximum penalty of life imprisonment.12 There is not what we call a tariff case or a guideline decision for manslaughter because the circumstances in which manslaughter can occur vary so much.13 Rather, the Court of Appeal has indicated that the best approach to setting a starting point for manslaughter is to consider the starting points adopted in similar cases.14 A case called Gacitua v R acknowledges that sentencing for motor manslaughter presents particular difficulties because: 15

By definition, it is one that always gives rise to extremely serious harm: the death of at least one victim (and in some cases serious injuries to others). Understandably this often leads to calls from victims’ families, and from the wider community, for tough sentencing. On the other hand, [because of the nature of the offence] an offender sentenced for causing death by dangerous driving did not intend to cause death or serious injury...

[16]   In considering similar cases, I note that s 9 of the Sentencing Act provides a range of factors that may be considered where applicable. Section 9 is not an exhaustive list and other factors may also be relevant. The Gacitua case sets out an additional range of aggravating and mitigating factors specific to motor manslaughter.16

[17]   As you have heard Crown counsel, Mr Tantrum, submit, there are a number of matters that make your offending more serious, and these have largely been accepted by Mr Hudson on your behalf. With the exception of victim impact, which I consider to be inherent in the offence of manslaughter, I accept the remainder are relevant and aggravate the seriousness of your offending.

12     Crimes Act, s 177(1).

13     Murray v R [2013] NZCA 177 at [20].

14     R v Leuta [2002] 1 NZLR 215 (CA) at [59].

15 Gacitua v R [2013] NZCA 234 at [24] citing R v Cooksley [2003] EWCA Crim 996 at [1].

16 At [25]–[26], citing R v Cooksley, above n 15, at [15]. While that case involved the much less serious charge of reckless driving causing death, the list of factors has subsequently been cited in a number of motor manslaughter decisions.

[18]   First, as you yourself have confirmed several times, your offending involved the deliberate use of a weapon, specifically your car. A car is indeed a “very large, unforgiving and formidable weapon” and its deliberate use, as here, will inevitably cause serious harm.17

[19]   Secondly, I accept that Mr Fifield was particularly vulnerable. Leaving aside the injury to his leg that he had previously suffered, his focus appears to have been very much on Mr Falconer’s car and he had his back to you as you exited the driveway. He was quite simply unaware of the danger and unable to take any form of avoiding action.

[20]   Having said that, I also accept that some of the circumstances present on the night that Mr Fifield was killed reduce to an extent the seriousness of your offending. Mr Hudson on your behalf notes you were there to recover your property after your break-up with Mr Fifield. This had led to a prolonged visit to Mr Fifield’s house before, after the arrival of Mr Falconer and Ms Hogg, you were able to take your chest. You then observed the ongoing assault of Mr Falconer’s car as it tried to exit the driveway out onto Moire Road. In Mr Hudson’s submission, your actions to protect Mr Falconer and Ms Hogg amounts to a form of excessive self-defence.

[21]   In his written submissions, Mr Tantrum appears to accept you initially acted to protect your associates, but submitted any credit for this must be significantly tempered by how disproportionate your response was in a context where Mr Falconer and Ms Hogg remained protected inside a moving vehicle, had earlier armed themselves with a bat, and Mr Fifield remained on foot outside their car.

[22]   With these factors of your offending in mind, I turn to address the comparable cases to assist in setting the starting point for your offending.

[23]   As you have heard me discuss with counsel, I have been addressed on a number of cases which involve starting points of between six and nine years’ imprisonment. 18

17 R v Haufano [2014] NZHC 1201 at [48].

18 R v Haufano, above n 16. The victim punched Mr Haufano in the head through the driver’s  window, perhaps up to four times. The victim then chased Mr Haufano’s associate down a nearby street. Mr Haufano drove after them, crossing the centre line to hit the victim. Mr Haufano drove

I will not go through the details of those cases today, but the written version of these sentencing notes will have footnoted comments giving the background to those cases.

[24]   Based on those cases and the factors that I have already discussed, Mr Tantrum submitted a starting point of six years and six months’ imprisonment would be appropriate, whereas Mr Hudson submitted the starting point should be five years’ imprisonment.

[25]   Having considered each of the cases and the submissions of counsel, I do not accept that your offending was at all comparable in nature with the offending in Rakete referred to by Mr Hudson,19 or in the cases that involve reckless driving rather than the deliberate use of a car as a weapon against the victim.20   Of the cases involving

over the victim without stopping and drove away. A starting point of six years’ imprisonment was adopted; R v Taiapa [2018] NZHC 1815. The offending was occurred admin rival gang tensions. Mr Taiapa deliberately steered his car into the rear of the victim’s motorcycle, jamming the rear wheel of the motorcycle under the front of his car. Mr Taiapa’s vehicle pushed the motorcycle along the road for some 70 metres. The starting point adopted was nine years’ imprisonment; R v Niumagumagu [2021] NZHC 3465. After his wife left him, Mr Niumagumagu went to her workplace where he attempted to repeatedly stab her in the neck and head with a sharpened piece of steel. After being restrained, Mr Niumagumagu got into his car initially driving away before returning to drive at speed towards the victim, his wife’s colleague, hitting her and throwing her into another car. She died instantly. The judge specified in respect of the manslaughter charge alone a starting point of nine years’ imprisonment would be appropriate (see at [21]); R v Green [2016] NZHC 513. The victim (who had been drinking) was a pedestrian who kicked out at Mr Green’s vehicle. His passenger told him he should go back to see what the problem was. Mr Green sped back down the road hitting the victim at around 80–

100 kilometres per hour. The starting point adopted was six years and six months’ imprisonment; and R v Ngamotu [2018] NZHC 893. Mr Ngamotu became involved in a dispute with his sister over the ownership of a caravan. With some assistance she began immobilising the caravan. When Mr Ngamotu discovered this a confrontation ensued. He got into his van and reversed it at speed towards the caravan. Although Mr Ngamotu claimed he only intended to hit the awning, he struck the caravan itself, knocking it off some bricks. The caravan in turn hit his sister. She was knocked to the ground injured. Mr Ngamotu continued to reverse and in doing so ran over his sister. A starting point of six years’ imprisonment was adopted.

19 R v Rakete [2013] NZHC 1230.

20 Niumagumagu, above n 17; Green, above n 17; Ngamotu, above n 17; and  R v Tauira HC  Auckland CRI-2006-092-11737, 19 June 2009 at [28]–[35]. Mr Tauira was driving in a convoy when a bottle had been thrown at one of the cars. A passenger got out of the car and challenged the group on the roadside. A fight ensued. All three of Mr Tairua’s passengers got out to help.  Mr Tairua drove a short distance up the street, carried out a U-turn, and stopped on the side of the road facing the fighting. Concerned the first passenger involved was outnumbered, he drove into the group. Mr Tairua hit two people, one of which became stuck under his car as it passed over. Mr Tairua did  not  stop  despite  people  shouting  that  someone  was under  the  car.  See  also R v Stevens [2017] NZHC 727. Mr Stevens had been drinking and argued with his partner, the victim in this case. He attempted to drive away from a property. The victim tried to stop him from leaving by grabbing the door handle of his car. A “tug of war” occurred while Mr Stevens continued to drive. Eventually, Mr Stevens let go, and the victim fell onto the road. Mr Stevens began to reverse; he then hit and ran over the victim, killing her. Mr Stevens left the scene without realising that the victim had been struck. Simon France J adopted a starting point of four years’ imprisonment. A discrete uplift of three months’ imprisonment was given for the fact the

deliberate use, I accept that the case of Taiapa was significantly more serious than the present case. Instead, I agree with Mr Tantrum your offending was ultimately very comparable to the offending in a case called Haufano.21 In that case there had been an altercation between the victim who was a pedestrian, and one of the passengers in a car which resulted in the victim assaulting the driver and then chasing the passenger on foot. The driver pursued the victim with his car and ultimately deliberately struck the victim from behind before fleeing the scene and attempting to avoid responsibility. In setting the starting point at six years’ imprisonment in that case, the Judge allowed for a six-month reduction for what he described as “provocation in a broad sense” notwithstanding it was accepted that the punching of the driver was well over by the time the car struck the victim and the passenger who was on foot was in no immediate danger from the victim.

[26]   As the nature of the offending and aggravating factors are very similar, as was also the grossly disproportionate response by the driver, I consider the six year, six month starting point adopted in Haufano is appropriate here, as also an allowance of six months for the circumstance of the offending. While the degree of provocation was arguably lower in the present case in that you yourself were not directly assaulted, I accept there must have been a sustained period of tension which was followed by your witnessing Mr Fifield’s sustained attack on Mr Falconer’s car which attack was continuing up until the point you struck Mr Fifield. I also take into account that, unlike the situation in Haufano, you remained at the scene until Police arrived.

[27]   Accordingly, taking the aggravating and mitigating factors and the relevant comparator cases into account, I adopt a starting point of six years’ imprisonment.

Personal circumstances

[28]I now turn to consider factors personal to you.

[29]   I agree with counsel that there is nothing in your prior history that requires any increase to the starting point.

offending also led to Mr Stevens’ sixth conviction for drink driving

21     R v Haufano, above n 16.

[30]   There is likewise no dispute that you are entitled to a discount for your early guilty plea. Mr  Hudson  had  submitted  that  20  per  cent  was  appropriate  and  Mr Tantrum agrees 15–20 per cent is in range. Having reviewed what has happened since you were charged, I agree that 20 per cent is the appropriate figure.

[31]   As you are aware, Mr Hudson has also sought allowances for aspects of your background and remorse. The background factors, or what he calls the s 27 information, is the information provided by members of your family in the letters that they have written to the Court.  Specifically, Mr Hudson submits an allowance of   10 per cent is appropriate to recognise what they see as your long-standing methamphetamine and mental health issues, intermittent housing instability, and history of unstable and unsuitable relationships.

[32]   As you have heard, Mr Tantrum does not support any allowance for those factors. He submits there is no causal nexus between those and the offending that has taken place.

[33]   I acknowledge what your family has told me about you. It is, however, necessarily brief and relatively non-specific, particularly with regard to whatever mental health issues you may have, and I note that in assessments completed as part of the current court process, no significant mental health issues were in fact identified. I also accept Mr Tantrum’s submission that it is difficult to see that there was any real causal connection between the various factors identified and what occurred on 13 June 2024. For example, while there is no dispute you do have issues with methamphetamine use, Mr Hudson has confirmed your position that you were not under the influence of methamphetamine on the night Mr Fifield was killed.

[34]   Ultimately I consider a five per cent allowance is warranted for both your history of housing instability that made it important for you to remove your positions from Mr Fifield’s home, and those background factors that led you into a clearly unsuitable relationship with Mr Fifield in the first place.

[35]   Turning to remorse, Mr Hudson submits your remorse is genuine. He submits it is evident in the letter you dictated to the Court and warrants a further specific allowance of five per cent.

[36]   I have read the letter carefully but I agree with Mr Tantrum — it does not go anywhere near justifying a discrete discount over and above that inherent in your acceptance of responsibility through your guilty plea and for which you have already received a substantial allowance. Instead I consider that the bare expression of remorse in the letter sits somewhat uneasily with your description of the events in the letter and in your account recorded by the probation officer in the PAC report that I have before me. I therefore decline to give a discrete discount for remorse.

[37]   This means from the adjusted starting point of six years’ imprisonment, taking into account the combined 25 per cent allowance for your guilty plea and background factors, leaves an end sentence of four years and six months’ imprisonment.

Other matters

[38]   As I indicated earlier, two further matters must now be considered: whether a minimum period of imprisonment is necessary; and whether or not a period of disqualification from driving is warranted once you have completed your sentence.

Minimum period of imprisonment

[39]   The cases are clear that a minimum period of imprisonment or MPI should not be imposed in a routine or mechanistic way without regard to the individual case.22 The fundamental concern is whether the period otherwise applicable under s 84(1) of the Parole Act 2002 would be insufficient for the purposes of denunciation, accountability, deterrence and/or the protection of the community.23

[40]   In this case as you have heard, Mr Tantrum submits an MPI is appropriate. In his submission, all of the factors are present but notes that, where there has been a plea of guilty, an MPI should not normally exceed 50 per cent.

22     Tang v R [2021] NZCA 266 at [35].

23     The purposes are provided by s 86(2) of the Sentencing Act.

[41]   On your behalf Mr Hudson submits that an MPI is not required in this case. In his submission, there is nothing in your offending that requires an MPI of more than one third of the sentence. Instead, he considers a decision as to when you should be released is best determined by the New Zealand Parole Board.

[42]   In this case, in the ordinary course of events, you would be eligible to apply for parole after serving just 18 months of your sentence. In my view that would be manifestly inadequate to reflect the sentencing purposes and principles to which I have referred and in particular would be insufficient to hold you accountable for the harm that you have done as a result of deliberately using your car to kill Mr Fifield. For that reason, I accept it is appropriate to set an MPI of 50 per cent.

Disqualification from driving

[43]   The final issue is whether there should be an order made pursuant to s 124 of the Sentencing Act, disqualifying you from driving after you have completed your sentence.

[44]   As you have heard, the Crown position is that there should be a period of disqualification. Mr Tantrum has noted that such periods were imposed in other comparable cases but has left it for me to determine how long that should be.

[45]   Mr Hudson submits that a period of disqualification in this case is unnecessary and would impose an undue level of hardship upon you.

[46]   Section 124 allows me to order you to be disqualified from holding or obtaining a driver’s licence for any period I think fit.24 In determining whether or not a period of disqualification should be applied and for how long it should be, I have regard to the overall purposes and principles of sentencing.25 I have also had regard to the comparable cases that I have referred to earlier and note in particular that disqualification has been applied in circumstances like these where it is not bad driving per se or reckless driving, but deliberate use of a motor vehicle as a weapon.26

24     Sentencing Act, ss 124(3) and 125(2).

25     Taiapa v R [2019] NZCA 524 at [22]–[35].

26     Taiapa v R, above n 25.

[47]   Having considered this issue carefully and note that it is important that all those holding a motor vehicle licence act responsibly and in ways quite different from how you utilised your vehicle on the night of 13 June 2024. As a result, I conclude that it is indeed necessary to impose a period of disqualification. While I note Mr Hudson has said this will impose an undue level of hardship upon you, I note that your family have all indicated they are prepared to support you by transporting you to such rehabilitative services as may be necessary after the completion of your sentence and you will have that support from your family. I therefore consider that a two-year period of disqualification is appropriate following the completion of your sentence.

Sentence

[48]Ms Smith, would you please stand.

[49]   For the manslaughter of Dean Fifield you are sentenced to  four years  and  six months’ imprisonment with a minimum period of imprisonment of 50 per cent. You are disqualified from holding or obtaining a driver’s licence for two years following the completion of your sentence.

[50]You may stand down.

Powell J