R v Meakin

Supreme Court of NSW|2016-10-14|Before: Davies J

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Accused) File Number(s): 2014/55959

remarks on sentence

On 21 February 2014 Nicholas McEvoy was struck and killed by a van driven by the offender on Richmond Road, Glendenning. The Crown case was that the offender had deliberately mounted the kerb and driven his van onto the nature strip in order to strike Mr McEvoy. The offender was charged with murder and in the alternative that he was involved in an impact occasioning the death of Nicholas McEvoy and that at the time of impact the offender was driving a vehicle under the influence of intoxicating liquor in circumstances of aggravation namely that the prescribed concentration of alcohol was in his blood.
The offender stood trial before a jury of 12 and me. Manslaughter was also left to the jury as an alternative. On 4 August 2016 the jury found him guilty of murder. He now stands to be sentenced for that offence.
The maximum sentence for murder is life imprisonment and there is a standard non-parole period of 20 years. It is not suggested that the present matter falls within the worst category of murder.

The facts

This case is another regrettable example of where excessive consumption of alcohol can lead. It involves a number of its well-known negative side-effects including lack of judgment, lack of insight, lack of self-control and outright aggression.
I find the following facts. Those facts which are found against the offender have been found by me beyond reasonable doubt and those in his favour on the balance of probabilities. It is my obligation to make findings of fact consistent with the verdict of the jury.
The offender was born on 11 February 1969. He was aged 45 at the time of the offence and is now aged 47.
The offender arrived at the Plumpton Inn on Richmond Road, Glendenning at about 2:15pm on 20 February 2014. He stayed at the Hotel drinking and playing pool until approximately midnight on that day. During the time that he remained at the Hotel he purchased 21 schooners of full strength beer. It was suggested on behalf of the offender that he may not have consumed all of those drinks himself particularly because on a number of occasions he was seen to purchase two drinks at a time. Given the offender's poor memory for the night in question, I cannot accept his evidence in that regard. However, whether he consumed all 21 schooners or not he agreed that by the end of the night he was drunk.
Dr Judith Perl, a pharmacologist and a specialist into the effects of alcohol and other drugs on cognitive functions and skill performance particularly in relation to driving ability, estimated that if the offender had drunk all of the drinks he purchased his blood alcohol concentration at about 12:08am on 21 February 2014 would have been within the range of .257 grams per 100 millilitres to .313 grams per 100 millilitres. She agreed that even if he had only consumed 16 of those drinks (taking into account the 5 occasions he purchased 2 at a time) his blood alcohol reading would definitely have been above .15 and more likely above .2. For the purpose of the alternative count charged, the prescribed concentration of alcohol was .15.
None of the Hotel staff who served or saw the offender considered that he appeared intoxicated. Dr Perl could only see some slight signs of intoxication when shown part of a DVD depicting the offender in the car park of the Hotel shortly before midnight. She considered that the offender appeared to have a tolerance for alcohol so that, although quite intoxicated in terms of physical and cognitive abilities, he appeared not to be drunk or very drunk.
Just before 11:00pm on 20 February Mr McEvoy entered the Plumpton Inn through the car park. He had earlier been at his brother's house at Dean Park to help him with some landscaping work. During that time and into the evening Mr McEvoy consumed a number of cans of beer.
When he was at the Hotel he showed some signs of being affected by alcohol. Some of those signs included overt friendliness towards other patrons, slight unsteadiness on his feet and exuberance on one occasion apparently in relation to a pool game being played by a friend of his, known as Chicken, against the offender. Mr McEvoy was encouraging Chicken and congratulating him on whatever shot he took. At some point the offender spoke to Mr McEvoy and said words suggesting that he let them play their own game. At that point Mr McEvoy stood back and watched. However, when the game concluded and Chicken won, Mr McEvoy jumped up and screamed and congratulated Chicken. He hugged him and became really excited.
The security guard assumed that Mr McEvoy may have been intoxicated or under the influence of something so he asked him to leave. Although there was some slight resistance from Mr McEvoy, and he said he did not want to go, he was backed out of the hotel by the security guard although without demonstrating any physical resistance or aggression towards the security guard.
Mr McEvoy then stood outside the gates to the beer garden smoking a cigarette. Shortly afterwards the offender went outside to where he was standing. According to the security guard the offender said to Mr McEvoy "Go home", and then Mr McEvoy and the offender exchanged words that were not friendly. At that point the offender took a swing at Mr McEvoy's head. Mr McEvoy blocked the punch. Although the security guard gave evidence that Mr McEvoy arced up and wanted to have a go at the offender the DVD of that altercation does not support that evidence. He was not aggressive, he was simply defending himself. The security guard then pushed Mr McEvoy away further into the carpark.
It may be accepted, however, that Mr McEvoy was reluctant to leave the Hotel grounds and that the security guard was obliged to walk him almost to the perimeter of those grounds. The offender watched Mr McEvoy walking across the car park and at one point walked some distance in his direction. When Mr McEvoy was over towards the eastern perimeter of the property and the security guard was walking back to the Hotel Mr McEvoy yelled out although what he was yelling and to whom was not disclosed but it may reasonably be assumed that it was directed towards the offender. In any event, Mr McEvoy shortly thereafter left the grounds of the Hotel and walked down Richmond Road. At some point he must have crossed to the other side, being the northern side where he was struck.
Shortly thereafter, perhaps five to ten minutes later, the offender drove his van from the Hotel car park. He turned right into Dublin Street and then, contrary to a 'No Right Turn' sign he turned right into Richmond Road. At the time the offender lived at Freemans Reach north of Richmond. The most direct route from the Plumpton Inn to Freemans Reach would have involved turning left at the intersection of Dublin Street and Richmond Road. I reject the offender's explanation that he wanted to get something to eat at McDonald's at Woodcroft for a number of reasons. First, that particular McDonald's is about a kilometre to the east away from the direction the offender needed to travel to get home. Secondly, it involved turning right off Richmond Road a short distance after the intersection with Quakers Hill Parkway, yet the offender was driving in the left hand lane nearest the nature strip, notwithstanding that he had turned right into Richmond Road. Thirdly, there was a 24 hours' McDonald's next to Richmond railway station which was on the offender's most direct route to his residence.
The offender drove east on Richmond Road travelling on the bridge over Eastern Creek. At that point Mr McEvoy was walking east along the nature strip (there being no footpath) on the northern side of Richmond Road. The offender saw him. The offender drove in such a way that his near side wheels mounted the gutter onto the nature strip and struck Mr McEvoy almost straight on with the near side front of the vehicle. He was thrown slightly to the left and some distance forward. His final resting position was in the vicinity of the sign for the Reserve. At the time of the impact the offender's vehicle was travelling at about 60km per hour. The impact caused a number of injuries to Mr McEvoy but the most significant was the fracture of his cervical spine at levels C2 to C4. The pathologist considered that death would most likely have occurred instantaneously or soon after impact.
The offender did not stop but drove home to Freemans Reach where he parked the van at the back of his property out of sight. There was significant damage to the front of the van consistent with an impact at a speed of about 60km per hour. After parking the van the offender went to sleep.
The next morning he got up and went to work. During the day he said that he heard that someone had been struck on Richmond Road and that they had died. He spoke to a friend of his, Julie Meredith, and he went with her to see a solicitor where he wrote out a statement of what he said had happened and then went to Penrith Police Station to hand himself in, as he put it. His account, contained in that statement was that after he had turned into Richmond Road at about 300 to 400 metres away someone stepped out onto to the road in front of the car. He said he did not have time to react when he collided with the person. He said he did not know who the person was. He knew he was over the limit so he kept going and went home the shortest way.
The jury clearly rejected the offender's version of how the accident happened. That was not surprising because there was little evidence to suggest that Mr McEvoy was not capable of walking without staggering onto the roadway. He had successfully crossed the four lanes of Richmond Road and none of the witnesses who observed him before he was struck indicated that he was staggering. He was seen on the CCTV doing shadow boxing in a very co-ordinated way as he walked across the carpark. Dr Perl said, after she viewed the DVD of Mr McEvoy in the carpark, that she could see no signs of significant intoxication; he was steady, co-ordinated and walking in a straight line. Significantly, she said that it was highly unlikely he would have tripped or fallen.
The charge of murder went to the jury on the basis that the offender intended either to kill Mr McEvoy or to inflict grievous bodily harm on him.
Although it may well be thought that deliberately driving at a pedestrian in a van at about 60km an hour demonstrated an intention to kill the pedestrian, that is not necessarily so. The offender may have intended only to hurt Mr McEvoy seriously to scare or punish him for what the offender saw as his unacceptable behaviour towards him but, because of the offender's level of intoxication, misjudged his speed or the likely effect of his actions. I am required to make findings against the offender beyond reasonable doubt and there is nothing in the evidence apart from the act of driving and striking Mr McEvoy that suggests the offender intended to kill him. I can only be satisfied beyond reasonable doubt that he intended to inflict grievous bodily harm upon him. However, like the sentencing judge in Ward (see Ward v R [2013] NSWCCA 46 at [211] and [214]) I can see little difference between the two intentions in the circumstance of the commission of the offence for the purpose of assessing the objective seriousness of the offending.
Whilst there was little planning or premeditation, I accept that the offender had formed the intent at least by the time he turned right into Richmond Road. I do not consider, given the interval of time since the offender threw the punch and Mr McEvoy left the Hotel grounds, that the offence was committed from any loss of self-control.
The fact that the offender was intoxicated to a significant degree should be regarded as an aggravating circumstance particularly given his criminal history which contains three offences of driving with the prescribed concentration of alcohol in his blood. The offender admitted that he knew he was drunk when he got into his van. The offender's van was used as a weapon, and that is a further aggravating matter. The Court of Criminal Appeal has said more than once that when used as a weapon a motor vehicle is properly described as a weapon of a particularly dangerous kind.
In circumstances where I have found that the offender intended only to inflict grievous bodily harm on Mr McEvoy I consider that his failure either to stop after he had struck him or at least to call, even anonymously, for an ambulance to be sent is an aggravating feature of the offence. For all that the offender knew, prompt medical treatment might have prevented his death. Although Mr McEvoy was killed instantly or near instantly this aspect must be viewed from the point of view of the offender at the time. If I had found he intended to kill Mr McEvoy, leaving the scene would simply have been part of the murderous enterprise.
I consider that the level of objective seriousness of the offending is within the mid-range.

Subjective matters

The offender did not give evidence at the sentence hearing. Although he gave evidence at the trial that evidence was directed only to the circumstances of, and surrounding, the offending. At the sentence hearing there was tendered on his behalf a report from a clinical psychologist, Laura Durkin who examined him on 4 October 2016. The psychologist noted that the offender presented as reserved in demeanour and said that he seemed reluctant to provide information about certain aspects of his life and functioning, and was obviously defensive. Those matters limited the depth of her report.
The offender was born in England and was the only child to his parents' union. The relationship broke down when he was aged approximately three years. Shortly thereafter his mother moved to Australia with the offender. The offender has only twice had contact with his father in the last 43 years. He reported that whilst his mother was practically supportive and said that she loved him, she failed meaningfully to bond with him and was not affectionate. The offender identified the domestic violence she experienced in her subsequent relationship with the offender's stepfather as being one reason for her inability to engage with him. His stepfather apparently abused the offender, and the offender's mother did not protect him from that abuse. His unsatisfactory relationship with his mother and the physical abuse from his stepfather led to an insecure childhood and led the offender to become controlling in his adulthood.
The offender has two children from two relationships. He has had little or no contact with them for many years although his elder daughter unexpectedly attended Court during the trial.
He has maintained regular employment since leaving school and was said to be a hard worker and successful as a window fabricator for many years.
The offender's physical health is relatively unremarkable. He fractured and dislocated both his shoulders in two motorcycle accidents but made a satisfactory recovery. He has for some 10 years suffered from Gastro Oesophageal Reflux Disease and he has recently been diagnosed with Type II Diabetes.
The psychologist noted that whilst the offender denied any notable behavioural problems including anger management issues, the offender minimised and was reluctant to provide details of his past criminal conduct which included offences of violence.
The psychologist considered that the offender's guarded and defensive manner would impact on his peer relationships and might also impact on his ability to empathise with others. The offender told her that his use of alcohol was non-problematic although he consumed up to seven standard drinks every day or every second day in the years prior to his offending and subsequent to the offence.
The offender maintained to the psychologist that the offence was an accident when the victim stepped out in front of his motor vehicle.
The psychologist administered the Personality Assessment Inventory (PAI). However, she said there was evidence that the offender may not have responded in an entirely forthright manner. She observed that the most notable elevation on the clinical scales of the PAI was in relation to the offender's account of his alcohol use. His answers indicated that alcohol had had a negative impact on his life. This contrasted with what he had told her.
The psychologist considered that the offender lacked insight into his functioning and any limitations, problems or deficits he displayed. However she said there was no evidence that the offender would have met criteria for a diagnosable psychological condition at the time of his offending. She thought his mental health at the time of her consultation with him was relatively stable. Although she said she could not diagnose an alcohol use disorder she said the offender displayed a problematic pattern of alcohol use. She said that if it was determined that the offender deliberately hit the victim with his vehicle, treatment for aggression was indicated and a program such as the Violent Offender Therapeutic Program was recommended. She thought, however, that his denial of his violent offending may render him ineligible for treatment.
I do not consider that there is anything in the upbringing or life experiences of the offender which can mitigate the seriousness of the offending.
Whilst the offender does not have a lengthy criminal record it extends back to his childhood and involves offences of violence and driving whilst under the influence of alcohol on three occasions. Given that the present offence involved both alcohol and violence his criminal record, whilst not an aggravating matter, does not entitle him to any leniency.
I note a reference tendered for the offender from Julie Meredith who gave evidence at the trial. She has known him for 12 years through her partner Ray. She describes him as generous and someone who would do anything for other people. She does not disclose if she is aware of his past offending including the offences involving either alcohol or violence.

Remorse

I do not consider that the offender has shown any remorse. He maintains his account of the event which involves an accidental striking of Mr McEvoy when he stepped onto the roadway. At no time has the offender expressed any sympathy for Mr McEvoy or his family, not even after hearing the reading of the heartfelt Victim Impact Statements by various members of Mr McEvoy's family. Some of those family members feel anger, understandably, towards the offender but all of them feel an intense sense of loss as a result of the senselessness of the killing. Nicholas McEvoy was obviously a person greatly loved by his family and his friends. The Court again extends its sympathy to the members of Mr McEvoy's family for their loss.
The offender was not able to point to anything that Mr McEvoy said or did at the Hotel which led to the offender swinging a punch at him except that the offender said he assumed Mr McEvoy must have said something to him. The evidence suggests only that Mr McEvoy was being perhaps a bit loud under the effects of what he had drunk, and somewhat exuberant, but there is no evidence at least until the two men were some distance apart in the car park that Mr McEvoy did or said anything to justify the punch being swung at him, let alone what ultimately happened. To drive a heavy van at 60kph at a pedestrian whilst on the nature strip is so out of proportion to any offence that the offender might have thought Mr McEvoy caused that it defies description.
The only evidence from the offender that could relate at all to the issue of remorse was that he said, when he heard the next day that Mr McEvoy had died, he was devastated and gutted that he didn't stop. However, that evidence was based on the offender's assertion that what happened was an accident and not the deliberate act that the jury and I have found occurred.

Rehabilitation

Based on the report of the psychologist Ms Durkin I consider that the offender's prospects of rehabilitation are guarded. Whilstever he is unprepared to accept his alcohol and anger management problems, including their relationship to his prior offending, and unprepared to accept what really happened that night, there does not seem to be a good chance of proper rehabilitation.
That raises consideration of the prospect of reoffending. Mr McEvoy was a complete stranger to the offender and simply by acting in a way no different from many people who have had too much to drink but without any aggression, was first on the receiving end of a punch by the offender and then suffered the fate that has brought the offender before this Court, seemingly because the offender has a problem with both alcohol and anger management.
Although Senior Counsel for the offender has urged on me a finding of special circumstances, I see no basis for this. Not only has the offender been incarcerated previously in 1992, so that this is not his first time in custody, the length of time he will spend on parole if the statutory ratio is applied will give ample time for reintegration into the community and whatever rehabilitation is needed in that regard.

Deterrence

Noting the offender's criminal record, the issue of specific deterrence is a relevant consideration. The fact that excessive alcohol was involved (with the side-effects I have previously mentioned) and that the offender drove his motor vehicle when he knew he was drunk puts general deterrence into the spotlight. Even if this event had occurred as the offender asserted Nicholas McEvoy would still have been killed. That also emphasises the significance of general deterrence. Further, what actually happened here was not a unique occurrence as cases such as R v Winner (1995) 79 A Crim R 528, R v Hall [2001] NSWCCA 202, Ward and Kutschner v R [2015] NSWCCA 73 show.
Those cases provide some general guidance for the sentence to be imposed, but what they do emphasise is the serious nature of murder committed in this manner. If there is any solace to be found in what happened here it is that in all probability Mr McEvoy, who did not see what was to befall him, probably died instantly.

Sentence

The offender only went into custody on the return of the verdict on 4 August 2016. The sentence will commence on that day.
Michael Meakin, for the murder of Nicholas McEvoy I sentence you to a non-parole period of 18 years commencing 4 August 2016 and expiring 3 August 2034 with a balance of term of 6 years expiring 3 August 2040. I dismiss the charge on the s 166 certificate of fail to stop and assist after vehicle impact causing death.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 October 2019

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