R v Williamson
[2024] NZHC 3670
•3 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-092-007200
[2024] NZHC 3670
THE KING v
ANTHONY DAVID WILLIAMSON
Hearing: 3 December 2024 Appearances:
B T Vaili and J E Bragg for the Crown
P Le’au’anae and R Sim for the Defendant
Judgment:
3 December 2024
SENTENCING NOTES OF POWELL J
R v ANTHONY DAVID WILLIAMSON [2024] NZHC 3670 [3 December 2024]
[1] Anthony Williamson, you appear for sentence today on a single charge of manslaughter. You were found guilty at trial of the manslaughter of Liang Miaoyuan, who died four days after she fell from your car on Botany Road.
The offending
[2]I begin by summarising what happened to bring you before the Court today.
[3]You did not know Ms Liang, or her husband, Mr Xie.
[4] While driving along Cascades Road in the early afternoon of 10 September 2022 you were involved in a minor accident. The front of your Ford Ranger Raptor ute appears to have gone into the rear of the vehicle being driven by Mr Xie, in which Ms Liang was a passenger.
[5] There is no dispute that both you and Mr Xie got out of your vehicles to see what had happened, and you subsequently reversed your ute slightly to allow an inspection of any damage and both of you took photos of the vehicles. There is no dispute that there were communication difficulties between you and Mr Xie. Mr Xie attempted to ring his son to assist but before he could connect, he said you pointed to the side road, being Solana Court, and he thought you were wanting him to drive to the side road to get the issue resolved. In first your interview with Police you confirmed that this was indeed what you had indicated.
[6] However, when you started driving you did not enter Solana Court. Instead, you continued to drive along Cascades Road so as to turn right into Botany Road at the next set of traffic lights. Thinking you were trying to get away Mr Xie and Ms Liang followed you in their car and came to a halt close to your vehicle but in the next lane on the right.
[7] While the cars were stopped Ms Liang, got out of her car and approached your vehicle until she was standing next to your driver’s door. She knocked firmly on your window in an apparent effort to get your attention. When the traffic lights turned green but while your ute was still stationary, Ms Liang got on to onto the running board of your vehicle.
[8] When traffic ahead of you began to move, you started driving with Ms Liang on the running board and trying to hold on to your partially open front window. Your defence, and what you explained to Police, was that you did not know she was there until you reached the far side of the intersection. The jury clearly did not accept your explanation, and I reject it for the purposes of sentencing you today.
[9] There is simply no way that you cannot have known Ms Liang was there on your running board as you moved off. She was shouting at you through the partially open window as she tried to get your attention even before you drove away. The CCTV footage from the Botany Motel confirmed just how loud Ms Liang was shouting. Indeed, a key part of your own explanation was that you heard her “screaming and yelling and asking for money”. Likewise, and as was apparent from the CCTV footage available, there is no way any driver could have failed to notice Ms Liang, distinctively dressed as she was in a bright red top, where she was located hanging on against your driver’s side front window.
[10] Ms Liang continued to yell and scream as you quickly accelerated. Data obtained from your vehicle showed you were already travelling at around 32 km/h as you reached the intersection and, after slowing down slightly in the intersection, thereafter generally accelerated up to a maximum speed of 43 km/h on Botany Road to a point about half-way between Cascades Road and Vesca Place.
[11] At that point, your driver’s door opened. As I discussed with counsel, I am satisfied on the available evidence that you were responsible for opening the door at that point. In your first account to Police, you explained Ms Liang was trying to hold on with her fingers on the inside of the window, and the fact that the door opened was consistent with the explanation you gave to Police that not only did you tell Ms Liang to “get the hell off [your] ute” you said you told her you were “opening the door and opened the door.”
[12] Shortly after the door opened, your speed began to gradually decrease, and Ms Liang began to fall from your vehicle. At the point at which Ms Liang started to fall, it appears that your speed had dropped to around 25km/h. As she hit the road, she received fatal head injuries and was knocked unconscious. Her body came to a stop
in the middle of the intersection of Botany Road and Vesca Place. Contrary to your initial explanation that your car had stopped before Ms Liang came off, there can be no dispute that your car was still travelling at about 19 km/h as it passed through the intersection. You then brought your vehicle briefly to a halt and as you did so, you closed your door. A member of the public attempted to stop you from leaving the scene, but you drove away, reaching speeds of 89 km/h as you headed off along Botany Road.
[13] Ms Liang was taken to Middlemore Hospital. She did not regain consciousness and she died of the injuries she received from the fall from your car. She was 70 years old.
[14] In finding you guilty of manslaughter, the jury clearly accepted that, by deciding to start driving while Ms Liang was on your running board, your driving was a major departure from the standard of care and skill of a competent and reasonable driver and created a situation that was dangerous to her and resulted in her death.
[15] Ms Liang’s death has had an understandably devastating impact on her family, and I acknowledge them now. You have heard from the victim impact statement of Mr Xie that Ms Liang’s death has brought unbearable pain to the family. It is clear Mr Xie misses Ms Liang deeply and that their home has been left with “only loneliness and silence”. Mr Xie’s sense of loss is similarly felt by the couple’s son, Liangyang Xie, who has told you of the shock of hearing of his mother lying unconscious in the middle of the road on a day that should have been one of celebration, and his feelings of being left blank, helpless, and desperate as he watched his mother die. There can be no doubt that tragic loss of a core member of their family has had a profound and devastating impact on Ms Liang’s family.
[16] While nothing can heal the pain for Ms Liang’s family that they will continue to endure on a daily basis, it is hoped that today’s sentencing will bring some closure to what has been a lengthy, and difficult process for them.
Approach to sentencing
[17] I turn to the approach that I must take in sentencing you today. I note first that I must take account of the general purposes and principles of sentencing as set out in the Sentencing Act 2002. In particular, the sentence I impose is intended to hold you accountable for the harm you have done to Ms Liang and her family and, importantly in the particular circumstances of this case, the need to promote in you a sense of responsibility for that harm.1 The sentence is also intended to denounce your conduct and to deter others from offending in the same way.2
[18] As to principles of sentencing, I note in particular that I must take into account the gravity of your offending and your degree of culpability.3 I also recognise the need to take into account of the seriousness of your offending,4 the consistency with appropriate sentencing levels in other cases,5 and the effect of your offending on Ms Liang and her family.6
[19] Setting a sentence involves two principal steps.7 First, I must indicate what starting point the offending of this type attracts. This involves an assessment of the aggravating and mitigating factors of your offending, that is the matters that make it more or less serious, and a comparison with the starting points set in comparable cases. Second, I will take account of any factors personal to you to determine whether the starting point should be increased or decreased.
Starting point
[20] I begin with the starting point. Manslaughter carries a maximum penalty of life imprisonment.8 There is not what we call a tariff case or guideline decision for manslaughter because the circumstances in which manslaughter can occur vary so much.9 Rather, the Court of Appeal has indicated that the best approach to setting a
1 Sentencing Act 2002, s 7(1)(a)–(b).
2 Section 7(1)(e)–(f).
3 Section 8(a).
4 Section 8(b).
5 Section 8(e).
6 Section 8(f).
7 Moses v R [2020] NZCA 296 at [46].
8 Crimes Act 1961, s 177.
9 Murray v R [2013] NZCA 177 at [20].
starting point for manslaughter is to consider the starting points adopted in similar cases.10 The Court of Appeal has also held that sentencing for motor manslaughter presents particular difficulties because: 11
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, an offender sentenced for causing death by dangerous driving did not intend to cause death or serious injury, even in the extreme case where he or she deliberately drove for a prolonged period with no regard for the safety of others.
[21] 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 be relevant. The Court of Appeal in a case called Gacitua v R set out an additional range of aggravating and mitigating factors specific to motor manslaughter.12
[22] As you have heard Crown Counsel, Ms Vaili, submit there are a number of matters that make your offending more serious, and these have been largely accepted by Mr Le’au’anae 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.
[23] First, you were forbidden to drive at the time of the offence. Quite simply, you should not have been on the road at all, had you been complying with your obligations under the law the accident would not have occurred.
[24] Secondly, I accept that Ms Liang was particularly vulnerable due to her age and size. Once you decided to start driving with her on your running board, there was no feasible way for her to dismount without injury and all she could do was to try and hang on until the vehicle stopped.
10 R v Leuta [2002] 1 NZLR 215 (CA) at [59].
11 Gacitua v R [2013] NZCA 234 at [24], citing R v Cooksley [2003] EWCA Crim 996 at [1].
12 Gacitua v R, above n 11, at [25]–[26], citing R v Cooksley, above n 11, 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.
[25] Although the period that you drove with Ms Liang only lasted for some 24 seconds the extent of your dangerous driving was nonetheless significant. In the time she was on your vehicle you drove some 194 metres, accelerated to a top speed of 43 km/h, appeared to swerve within your lane and opened the driver’s door of your vehicle while Ms Liang was trying to hold on.
[26] Finally, after Ms Liang fell from your vehicle, although you briefly stopped and shut the door you made no effort to check whether she was injured or needed assistance. Instead, you did quite the opposite, and when a member of the public tried to stop you leaving the scene, you drove away at speeds of up to 89 km/h and did not subsequently call emergency services.
[27] There is nothing that reduces the seriousness of your offending. Although Mr Le’au’anae submitted that your offending would never have occurred if Ms Liang had never climbed onto your vehicle that is not a mitigating factor. Ms Liang climbed on to your vehicle while it was stationary. She was only put at risk when you drove off into the intersection.
Comparable cases
[28] With the aggravating factors of your offending in mind, I turn to address the comparable cases to assist in setting the starting point for your offending.
[29] As you have heard me discuss with counsel, I have been addressed on a number of cases which involve starting points of between four and five years’ imprisonment, 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.
[30] Based on those cases, which we describe as comparator cases you have heard Ms Vaili has submitted that the starting point should be five years’ imprisonment and Mr Le’au’anae, a starting point of around four years and three months’ imprisonment. 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 the case of
Towler13 or S & G.14 Instead, I consider your offending was similar to but more serious than the offending in Tawa15 and Stevens.16 While in Tawa and Stevens the death in each case was caused by the victim being struck by the offenders’ vehicle, the victims having attempted to stop the drivers’ from leaving, the offenders’ dangerous driving occurred in circumstances where they ought to have known, but did not necessarily know, that the victim was in the vicinity. I note the fact that Mr Stevens was under the influence of alcohol was irrelevant to the comparison given Mr Stevens received a separate uplift for that component of his offending.
13 R v Towler [2024] NZHC 870. Mr Towler was involved in an altercation with the victim who was the passenger in a Ford Territory being driven by the victim’s partner. The victim’s partner perceived Mr Towler had cut her off. At an intersection, the victim stood on the Ford’s passenger’s side running board while holding onto its roof with one hand. A verbal altercation ensued between the victim and Mr Towler. Mr Towler drove his car a short distance down Glendale Road and executed a forceful U-turn. He continued to accelerate in the direction he had come from and crossed to the wrong side of the road around traffic. The victim was standing to one side, on the pedestrian crossing, facing Mr Towler’s car. Mr Towler hit him two seconds after completing the U-turn. The victim was carried on the bonnet and windscreen of Mr Towler’s vehicle for some distance after impact. The victim fell to the side of the road as Mr Towler swerved to the correct side of the road after passing traffic. The victim died at the scene. Mr Towler did not stop and continued to drive away. A starting point of five years’ imprisonment was adopted.
14 R v S & G [2024] NZHC 197. Both defendants in S & G had assaulted the victim earlier in the evening on the night of the manslaughter offending. Following the assaults, the defendants got into their vehicle and encountered the victim on the street. They stopped and the victim approached their car. S reached out of the right rear window of the vehicle and struck the victim in the head. G then leaned out of the driver’s window, grabbed the victim by the shirt, and drove off while still holding the victim. The victim ran alongside the vehicle. S reached out and grabbed the victim as well, who managed to jump onto the running board of the vehicle as they turned a corner. The victim then held onto the vehicle while G continued to drive. The victim lost their footing, fell, and was run over by the back right wheel of the vehicle. G continued to drive and S called the Police several minutes later. The victim died three days later. A starting point of four-and-a-half years’ imprisonment for the overall offending of G was adopted.
15 R v Tawa [2020] NZHC 95. Mr Tawa left a property where he had been drinking with the victim. The victim pursued Mr Tawa, pulled open the driver’s door of his car, stood on the front driver’s sill of the car and assaulted Mr Tawa as he drove down the road. After the victim fell off the vehicle, Mr Tawa made a violent turn and ran over the victim’s head, thereby causing his death. Lang J accepted that Mr Tawa’s offending did not involve a prolonged or premeditated piece of bad driving, and that Mr Tawa was likely to have been motivated by a sense of panic in trying to escape the risk of physical injury inflicted by the victim. The Judge identified the fact that Mr Tawa caused his vehicle to travel over to the wrong side of the road when he must have known his brother was somewhere in the vicinity as an aggravating factor. A starting point of four years’ imprisonment was adopted.
16 R v Stevens [2017] NZHC 727. While Mr Stevens was attempting to drive away from a property after arguing with the victim, 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 six months’ imprisonment was given for the fact the offending also led to Mr Stevens sixth conviction for drink driving.
[31] In the end I conclude that the case of R v Thompson17 was the closest to the present facts. As the judge noted in that case, the driver “drove at a normal speed and in normal manner apart from the fact that he had the victim on the bonnet with his back against the windscreen.” Likewise, the driver in that case carried on driving despite the victim calling out for help and failed to stop after the victim had fallen off, choosing instead to drive home. As in Thompson, you knew Ms Liang was on your running board, but you nonetheless made a conscious decision to drive off with her on your vehicle, and to accelerate on to Botany Road before opening your driver’s door, with the consequences I have previously detailed. Like Thompson I consider this case is ultimately one of a serious but one off case of bad judgment and bad driving on your part.
[32] Accordingly, taking the aggravating factors and the relevant comparator cases into account I adopt a starting point of four years, six months’ imprisonment.
Personal circumstances
[33]I now turn to consider factors personal to you.
[34] I accept that there are no aggravating personal factors that require an increase in the sentence. In relation to mitigating factors, as you will be aware, Mr Le’au’anae submitted you should receive a discount of up to 30 per cent in respect of the matters set out in the s 27 report prepared by Karen Taylor on your behalf. Mr Le’au’anae also submitted discrete discounts should be given for:
17 R v Thompson [2012] NZHC 2526. T pleaded guilty to a count of manslaughter. Following an altercation over disposal of rubbish, T drove off and D ended up on the bonnet of T’s car with his back against the windscreen, blocking T’s vision. T drove at speeds between 30 and 60 km/h for some 440 metres with D in this position. D called out to bystanders for assistance and also rang the police on 111. D eventually rolled off the car, suffering fatal head injuries. T drove home. The judge accepted it was a one-off case of bad judgment and driving. It was obvious to T that D feared for his life but T failed to stop to let him get off safely. T was devastated by what had happened but continued to justify his actions, stating he feared for his own safety at the time. T’s previous convictions were 20 years old and were not relevant. The aggravating factors were the distance travelled, the fact that T continued driving despite D’s calls for help and, instead of stopping and helping D when he fell onto the road, driving away. With reference to R v Fairburn [2012] NZHC 28, the starting point was four and a half years. T did not accept responsibility and no discount was given for his claimed remorse. The final sentence was identical to the starting point. T was disqualified for three years from the day of his release from prison.
(a)your remorse as evidenced by your letters to the Court, to Ms Liang’s family and to the general public;
(b)your offer of $2,500 in emotional harm reparation to Ms Liang’s family; and
(c)your completion of a number of programmes while in custody, including a “Six Thinking Hats” programme.
[35]I address these matters in turn.
Section 27 Report
[36] The s 27 report provided to the Court has given an explanation of your background and to a certain extent, your explanation of your offending. Ms Taylor has set out your account of growing up and described your alcohol use, being bullied at school, and struggling academically. She said your parents separated when you were a child, which negatively impacted you. Your own marriage ended in the last few years and your business has failed. Ms Taylor says you have been under significant stress for some time and used alcohol as a coping mechanism. More recently, she indicated you have also abused substances although you were at pains to note you were not under the influence of alcohol or any other substance at the time of your offending.
[37] I acknowledge that by way of your self-report to Ms Taylor, and despite what appears to have been a generally good upbringing and that you, for much of your life have a led a life as a successful and productive builder within the community, you have faced a variety of challenges in the past few years. There is, however, a real dearth of detail provided in the s 27 report, both as to the dates and details of particular events that are described. As a result, it is difficult to place any particular weight on any of the matters described in the s 27 report. On the contrary there seems a common thread in the s 27 report whereby you blame unnamed third parties for particular events. In any event, I do not consider that there is any causative link or clear nexus between any of the difficulties described in the s 27 report and your offending such that any discount to your sentence is justified.
Remorse
[38] I now turn to remorse. I have read all, I think it is now seven, of the letters that you have written. I am, however, not satisfied that any of those letters reflect any genuine remorse on your part, or indeed that you have shown any genuine remorse at any point since Ms Liang fell from your vehicle.
[39] On the contrary it is clear that while you are now sorry for yourself at the consequences of your offending, and the prospect of imprisonment and being separated from you children, you have still not understood what you did that has brought you to this court.
[40] All you have done in your letter to me is to say, “how sorry [you] are for any involvement of this tragic accident”. To Ms Liang’s family you have simply written the letter “to convey [your] deepest sympathies and condolences”. To the public you advised:
I was involved in an accident on the intersection of Cascades and Botany Road.
Tragically a Mrs Liang passed away a few days later, after she jumped on my running board in traffic, several seconds later as I stopped, she fell off, the running board of my Ute.
I have expressed my deepest condolences to Mrs Liang’s family and loved ones.
[41] Similar sentiments are recorded in both the s 27 report and the Provision of Advice to the Court report, otherwise known as a PAC report, when you were interviewed by a Probation Officer. Your additional letters received shortly before coming to Court this morning are all to the same effect. Indeed, they appear to be even less insightful about your offending given that they continue to assert that you did not see Ms Liang on the running board, nor when she fell off, and that you only did not stop after Ms Liang fell off because you were assaulted. Instead, you continue to see yourself as the victim “not understanding the levels to which the Police and the Crown intended to portray you in this unfortunate accident”, and are now being prevented from seeing your children and continuing your career.
[42] The contents of your letters, and your comments to both Ms Taylor and the PAC report writer simply reflect that at no stage have you ever recognised that Ms Liang died because you made a deliberate decision to drive while she was on the running board of your ute, to then accelerate, and then to try and get her off your car by opening the door.
[43] More than that, it was apparent from the evidence at trial, and in particular your two statements to Police that at no point did you ever recognise Ms Liang’s essential humanity, that she was a person, a loved wife and mother. Instead, as the jury indeed recognised by one of their questions in the course of the trial, you never even inquired of Police as to whether she was all right after she had fallen from your ute, instead you continued to assert that she was some sort of “unsavoury character” who was attempting a scam, and you told the Police you could not understand why you “were the one under the gun when [you] were the one [being] extorted”. Your letters show, quite simply, that nothing has changed. For the same reason while I acknowledge that in your most recent letter you have made a belated formal request for restorative justice (which, as Mr Le’au’anae said, that time really has passed), I do not consider in the circumstances of this case that could possibly justify a discount given your ongoing failure to acknowledge any responsibility for your actions on that day.
[44] In all of the circumstances, I consider any discount for remorse would be quite unjustified and inappropriate.
Emotional harm reparation
[45] I likewise find it difficult to consider what to make of your offer to pay $2,500 in emotional harm reparation. As Mr Le’au’anae has explained, that is not a payment that you can make today and in the context of what seems to be a fairly significant settlement that you are anticipating, it does seem a very small payment. More fundamentally, it is difficult to know how to treat such payment given, as I have noted, the absence of any real remorse on your part and I note that Ms Liang’s family do not wish to take any payment.
[46] While I am required to take into account any offer of amends whether financial or otherwise made by an offender to a victim,18 I must take account of whether I consider the offer was genuine and capable of fulfilment and whether the victim accepts the offer goes anyway to mitigating the wrong that has been suffered. There is no requirement for the Court to provide any credit for any such offer and indeed this Court has repeatedly declined to do so or otherwise provide a minimal credit.19 Ultimately, I do not consider in the circumstances of the case that any discount is warranted by your offer to pay emotional harm reparation.
Rehabilitation efforts
[47] I turn now to your rehabilitation efforts. While I accept you have completed some courses while on remand, I do not accept, as I discussed with Mr Le’au’anae, it is significant in the light of either your background or given the nature of your offending. No discount to your sentence is warranted for the completion of those courses.
Other Matters
[48] For completeness, I just note the two matters which Mr Le’au’anae has brought to my attention which were the fact that your ute has subsequently been stolen with the loss of your work tools and the assault that you suffered in prison which you have detailed in one of your letters to the Court. As Mr Le’au’anae accepted neither of those matters are matters that I can properly take into account in sentencing you today, and I put them both to one side in determining your sentence.
18 Sentencing Act, ss 9(2)(f) and 10.
19 For example, in R v Tuitama [2024] NZHC 1175, Isac J noted that he was required to consider the making of a $15,000 emotional harm reparation payment but considered it in conjunction with significant community work by the offender. For these combined mitigating factors, Isac J only provided a five per cent discount. In Tapsell v R [2022] NZHC 473, Osborne J upheld the District Court Judge’s (DCJ) decision to provide no credit for remorse where the offender had offered a payment of $500, in addition to services valued at $5,000, and expressed willingness to attend restorative justice. He held that it was open to the DCJ to assess that there was no genuine remorse from the materials before him. Osborne J considered that the DCJ’s assessment of the materials as showing that the offender did not accept full responsibility for his offending and deflected blame to the victim. As such, no discount for remorse was available.
End sentence
[49] Taking these various matters together, I am not satisfied that any deduction should be made, and your end sentence will be four years, and six months’ imprisonment. As a result, eligibility for home detention or community-based sentences does not arise.
Disqualification from driving
[50] The final issue is that Crown seeks an order pursuant to s 124 of the Sentencing Act, disqualifying you from driving for two years from your release from prison. The Crown says this period of disqualification would be appropriate because your driving was deliberately poor, and that you have previously failed to comply with orders prohibiting you from driving. There were no contrary submissions provided on behalf of the defence.
[51] Section 124 allows me to order you to be disqualified from holding or obtaining a driver’s licence for any period I think fit.20 In determining the appropriate period of disqualification, I have regard to the overall purposes and principles of sentencing.21 Although I am not required to, I have also had regard to the comparable cases traversed earlier, which involved periods of disqualification ranging from 12 months to four years. Given this range, and noting the necessity of driving for your rehabilitation and reintegration into the community post-sentence,22 I consider the two-year period proposed by the Crown to be reasonable.
Sentence
[52]Mr Williamson, please stand.
[53] For the manslaughter of Liang Miaoyuan you are hereby sentenced to four years and six months’ imprisonment.
20 Sentencing Act, ss 124(3) and 125(2).
21 Taiapa v R [2019] NZCA 524 at [22]–[35].
22 Mathias v Police [2016] NZHC 959 at [37]–[39], endorsed in Taiapa v R, above n 21, at [27]–[29].
[54] You are disqualified from holding or obtaining a driver licence for a period of two years after your release from prison.
[55]You may stand down.
Powell J
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