R v Stevens

[2017] NZHC 727

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2016-085-933 [2017] NZHC 727

THE QUEEN

v

MARK DAVID STEVENS

Hearing:	12 April 2017
Counsel:	P K Feltham for Crown J M Ablett-Kerr QC and E M Hall for Defendant
Sentence:	12 April 2017

SENTENCE OF SIMON FRANCE J

[1]      Mr Stevens, you appear for sentencing on two charges: (a)           manslaughter; and

(b)      drink driving.1

[2]      The victim was your partner of some 15 years; Ms Delia Williams.  We have today heard from Ms Williams’ mother, son and siblings.  It is clear they feel a deep sense of loss, and I acknowledge that and thank them for their input today.   The accounts we have heard today bring home the tragedy that always underlies these events.  There is always sadness, and also conflicting emotions.  It is important and helpful for the Court to be reminded of the reality of these situations.  I say to the

members of Ms Williams’ family that  I hope  that  even  through  your grief and

1      Land Transport Act 1998, s 56(1); a breath alcohol reading of 510mg.

R v STEVENS [2017] NZHC 727 [12 April 2017]

frustration and perhaps anger, you will understand that the sentencing today is not in any way trying to assess what a life is worth.  Rather, it reflects the circumstances in which the life was lost, and properly holds the offender accountable for those circumstances and the fact that he has caused a death.

[3]      My other introductory comment is that I know it will be difficult but it is important to realise that the sentencing today proceeds on the basis of an agreed summary of facts as to what happened. Mr Stevens was originally charged with murder which carries the idea that he deliberately tried to hurt Ms Williams by driving at her. It is now accepted by the prosecution that this is not so. Ms Williams death was an accident, but it was an accident that should never have happened and which was brought about by Mr Stevens’ gross carelessness. He acknowledges that by his plea to manslaughter.

[4]      The  relationship  between  you,  Mr  Stevens,  and  Ms Williams  has  been described as a volatile or turbulent one.   It obviously involved genuine love and affection, but also moments of anger and dispute.  The records indicate Police were called to 10 incidents, and in 2010 you were convicted of assaulting Ms Williams.

[5]      A second aspect of the relationship was the use of alcohol, and it is clear a considerable quantity had been consumed on the day or evening in question.  After dinner  Ms Williams  and  yourself  began  arguing  and  you  decided  to  leave. Ms Williams followed you as you reversed, intoxicated, up the driveway, trying to convince you it seems to not drive while intoxicated.   You were initially driving slowly but sped up as Ms Williams approached.

[6]      Ms Williams tried to stop you leaving and grabbed the door handle on the driver’s side.  A tug of war with the door ensued while you continued to drive.  You let go, the door swung back and Ms Williams fell over.  By now you had reached the road and were backing across it.  Ms Williams fell by the right front tyre.

[7]      You continued to reverse, backing into a car parked opposite the driveway before driving forward.  As you did so, and as Ms Williams was getting up, the car hit her and she fell underneath it.   It was travelling slowly.   The car drove over Ms Williams who was killed. You drove off.

[8]      You have pleaded guilty to manslaughter and it is necessary to unpackage what that means:

(a)      first, you did not intend to hit Ms Williams with the car and I accept that when you drove off you didn’t realise you had done so;

(b)      but second, the risk of hitting her should have been obvious to you.

You knew she had fallen and took no care about where she was.  The fact that you did not realise the bump was her just serves to illustrate the high level of carelessness that makes this unintended death an offence of manslaughter;

(c)      I have no doubt your lack of awareness was due at least in part to what would have been mild intoxication.  You told a psychiatrist who interviewed  you that  you did not realise you had backed into the parked car, another sign of your lack of care and intoxication.

(d)the prosecution suggest there are other aggravating features which I need to address. First the fact that you drove off without stopping; I do not accept that as aggravating the offending.   Your position has been that you did not know the car had hit Ms Williams nor run over her.  It is not part of the Summary of Facts that you did.  If that is so, there can be no blame in failing to stop.  Second, the vulnerability of the victim. I do not see this as an aggravating feature because it is already the essence of why this incident is manslaughter. You knew the victim, Ms Williams, had fallen near the car and yet continued to drive; that is the gross carelessness. There was no conduct directed at Ms Williams.

[9]      This is your sixth drink driving conviction, although it is fair to note the two preceding ones were in 2009 and 2004 respectively.

Sentencing information

[10]     For the record I note I have received:

(a)       sentencing submission from both lawyers;

(b)through the Crown, written versions of the victim impact statements we heard today;

(c)       through your lawyer, letters from you expressing remorse, and letters of support from friends and family;

(d)again through your lawyer a report from Dr Justin Barry-Walsh, an experienced psychiatrist; and

(e)       a pre-sentence report from the Department of Corrections.

[11]     I do not intend to summarise all that material, but rather indicate it has been read and considered.  I accept you are remorseful for what you have done and the hurt  you  caused  to  Ms Williams’ family. There  are  comments  by Ms Williams’ family today that to them you seem to show none. The psychiatric report I have read suggests expressing feelings like this is an area you struggle with.  If you are genuine in the letters you have written (and Ms William’s son acknowledged receipt of one today), then it is clear that those you are trying to apologise to are not convinced you mean it, so I suggest to you that you need to work harder at it. You have indicated a willingness to address your alcohol issues, and have done a brief course whilst in prison. However, there is also a tendency by you to try and link what happened to a

stroke you suffered in 2009.  In my opinion there is little to support that link,2 and I

think you still need to confront fully the reality of why this happened.

Sentence

[12]     What  sentence is  imposed is  always  influenced  by the need  to  maintain consistency with like cases.  Unsurprisingly there are none really like this one but there are common features:

(a)       a high lack of care;

(b)      intoxication, and of course;

(c)       inherent in the offence but always to be in the forefront, the loss of a life as a consequence.

[13]     There are some parallels to reckless driving cases where death has ensued but generally in those cases the pattern of driving preceding the death has been of a different  nature  and  inherently  much  more  dangerous  than  your  driving.  Your counsel suggests the appropriate figure before you receive credit for your guilty plea is three to three and a half years.  The prosecution suggest four to five years but I do not think the circumstances support the upper range of that.  You did not turn your mind to the risk Ms Williams was facing.  But that risk should have been perfectly obvious to you.  That is your culpability, and it led to Ms Williams’ death.  In my view four years’ imprisonment is the appropriate starting point.

[14]     I add three months for the fact that this is your sixth drink driving offence. You are entitled to credit for your guilty plea (25 per cent) and your remorse.  I do not consider any other matters require recognition – be it health or age.

[15]     The final sentence is three years’ imprisonment. A lesser amount would not represent adequate accountability.

[16]     I disqualify you from driving for four years from your date of release.3

[17]     The confiscation order is not opposed, and I order accordingly.

Please stand

[18]     On the charge of manslaughter I sentence you to three years’ imprisonment.

[19]     On the charge of driving with excess breath alcohol (third or subsequent) I

sentence you to nine months’ imprisonment to be served at the same time.

[20]     I disqualify you from driving for four years starting upon your release from imprisonment.

[21]     I direct confiscation of your car.

Simon France J