Aorangi v Police

[2025] NZHC 786

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2025-409-74

[2025] NZHC 786

BETWEEN

DANTE AORANGI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	3 April 2025
Appearances:	C G Nolan for Appellant G J Barrett for Respondent
Judgment:	4 April 2025

JUDGMENT OF EATON J

(appeal against sentence)

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

AORANGI v POLICE [2025] NZHC 786 [4 April 2025]

Introduction

[1]    On 26 February 2025, Dante Aorangi was sentenced to three months’ community detention, ordered to pay $5,000 in emotional harm reparation and disqualified from driving for 12 months1 following her guilty plea to a charge of careless driving causing death.2

[2]Ms Aorangi appeals against that sentence. She says it is manifestly excessive.

[3]    I acknowledge at the very outset of this appeal that cases involving the careless use of a motor vehicle causing death are inevitably difficult. Sentences are often seen by a victim’s family as hopelessly inadequate. That is because a life has been lost through the actions of the defendant and yet the maximum sentence that could be imposed by a court for the offence is three months’ imprisonment or a $4,500 fine, coupled with mandatory disqualification.

[4]    The facts of this case can be briefly stated and only serve to demonstrate that momentary inattention while driving, particularly on the open road, can have devastating and enduring consequences.

Facts

[5]    On 28 January 2024, Ms Aorangi had not long turned 20 years old. At around 9:00 am that morning she departed Karamea driving a borrowed vehicle and heading for Lyttleton. She was accompanied by two passengers, her brother and her ex-step-mother. Ms Aorangi was on her learner licence, issued in November 2023. About 20 minutes out of Greymouth she pulled over to pick up Mr Snode who was hitchhiking. He sat in the left rear passenger seat.

[6]    At around 3:30 pm, Ms Aorangi was driving along the Otira Highway. The open-road speed limit was 100 kilometres per hour. The road was dry, there was clear visibility and no wind. Ms Aorangi failed to guide the car through a very slight right curve in the road. The left wheels of the vehicle drifted into the loose gravel on the

1      Police v Aorangi [2025] NZDC 4309.

2      Land Transport Act 1998, s 38; maximum penalty three months’ imprisonment or $4,500 fine.

verge of the road. Ms Aorangi over-corrected and the vehicle rotated clockwise, causing it to slide across both lanes. The vehicle’s left rear corner impacted with a stone wall. Mr Snode died at the scene.

Victim Impact Statement

[7]    Thirteen victim impact statements were provided to the Court at sentencing. Friends and family of Mr Snode wrote about him as an inspirational young man and the agony of the immeasurable loss they suffer. Mr Snode’s parents loved their son immensely and wrote of the pain of the police arriving on their doorstep, on the other side of the world, to be informed they had lost their 26-year-old son. They miss him terribly.

Personal circumstances

[8]    Ms Aorangi has no previous convictions. After leaving school she secured employment as a carer in a rest home but after suffering a head injury in the crash, was unable to work. She then commenced full-time studies at the University of Canterbury where she is studying for a Bachelor of Engineering. She undertakes around 60 hours a week of studies.

[9]    The pre-sentence report refers to Ms Aorangi’s personal history and her diagnosis of ADHD following the crash. It records Ms Aorangi’s devastation and remorse at the death of Mr Snode. She told the probation officer that any sentence she received would be inadequate to reflect the suffering of Mr Snode’s family. The report records Ms Aorangi’s willingness to participate in a restorative justice conference. She is assessed as presenting a low likelihood of offending in the future and at no risk of harm to others.

[10]   The report referred to ongoing tiredness resulting from the head injury and Ms Aorangi’s full-time studies as factors to be considered in determining whether a sentence of community work was appropriate. The recommended sentence was community detention and emotional harm reparation.

District Court Decision

[11]   The Judge described the cause of the crash as something of a mystery and observed that apart from the fact of the crash, the evidence did not permit a finding as to the actual driving fault. The Judge referred to Ms Aorangi’s remorse, a head injury Ms Aorangi suffered as a result of the crash, and her diagnosis of ADHD following hospitalisation. The Judge was cognisant of Ms Aorangi’s youth.

[12]The approach adopted by the Judge is captured in the following paragraph:3

If I were to use the usual sentencing process of setting a starting point before giving you credits for any matters that would be to your advantage, such as your relatively early guilty plea, that would shortly become a nonsense. I am simply going to take the view that a term of three months’ community detention is the appropriate outcome in all the circumstances that confront me today.

Principles on appeal

[13]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 As the Court of Appeal observed in Tutakangahau v R, referencing the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.5 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.6

Submissions

Appellant’s submissions

[14]   Mr Nolan, for Ms Aorangi, submits that the Judge erred in not adopting a starting point or applying the appropriate credit for mitigating factors personal to

3      Police v Aorangi, above n 1, at [12].

4      Criminal Procedure Act 2011, ss 250(2) and 250(3).

5      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

6      Ripia v R [2011] NZCA 101 at [15].

Ms Aorangi. As a consequence, he submits the least restrictive sentence was not imposed.

[15]   Mr Nolan submits that, notwithstanding the tragedy of Mr Snode’s death, the gravity of the offending itself was low. He highlights that Ms Aorangi was fulfilling all learner licence conditions at the time of the incident, she was not speeding or engaged in any dangerous operation of the motor vehicle and was not under the influence of alcohol or drugs. Mr Nolan refers to Simon v Police and the authorities cited in that case as supporting the case for the appellant.7

[16]   In oral submissions Mr Nolan submits the least restrictive end sentence was one of disqualification and the payment of emotional harm reparation.

Respondent’s submissions

[17]   Ms Barrett, for the respondent, submits there is no tariff decision for the offence of careless use causing death. As regards to the approach adopted by the Judge, Ms Barrett refers to Tinei v Police, where Asher J recognised that sentencing for traffic offences can be “cumbersome and awkward where there is no question of a sentence of imprisonment”, and “in the absence of any specific reasoning that this Court must itself try on a principled basis to discern the correct sentencing range.8

[18]   Counsel submits that having determined that a sentence of imprisonment was not appropriate, the Judge was not obliged to set a starting point but rather adopt an end sentence he considered reflected the principles and purposes of sentencing.

[19]   Ms Barrett refers to Sidhu v Police and Findlay v Police as analogous cases that support the sentence imposed.9

7      Simon v Police [2019] NZHC 2869 see also cases cited within Simon: Eades v Police HC Christchurch CRI-2009-409-135, 3 December 2009; Barr v Police HC Rotorua CRI-2011-463- 42, 29 November 2011; Ramsay v Police HC Timaru CRI-2008-476-23, 10 September 2008; and Bassett v Police [2014] NZHC 2188.

8      Tinei v Police [2012] NZHC 2003 at [11].

9      Sidhu v Police [2019] NZHC 1168 and Findlay v Police HC Christchurch CRI-2008-409-194, 19 February 2009.

Analysis

[20]   Mr Nolan contends that the Judge erred by not applying the Moses two-step sentencing process, and that the failure to do so has resulted in a manifestly excessive sentence. 10 I do not accept that submission.

[21]   In cases where a sentence of imprisonment is not the appropriate starting point and a pre-sentence report casts doubt as to whether a sentence of community work would be appropriate, there is a degree of artificiality in the court nevertheless adopting the approach of fixing a starting point and then applying adjustments for personal aggravating or mitigating factors. To require a sentencing Judge to adopt that approach regardless of the sentence to be imposed would be unduly onerous and unrealistic.

[22]   In Tinei v Police, Asher J acknowledged, and I agree, that when imprisonment is a live issue, a sentencing Judge should set a starting point. 11 But in cases where imprisonment is off the table, sentencing will more typically involve oral submissions in a busy list court addressing what community-based sentence should be imposed and a Moses approach is not necessarily applied.

[23]   The approach taken by the District Court Judge was not unorthodox. A review of the authorities confirms that it is not uncommon for a sentencing Judge not to identify a starting point when sentencing on charges of careless use causing death when community-based sentences are imposed.12

[24]   I agree with Ms Barrett that the failure of the Judge to apply the Moses two-step sentencing process could not of itself give rise to a manifestly or inappropriate sentence. It may, however, require an appellate court to review the appropriate sentencing range having regard to the assessed culpability level.

10 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

11 Tinei v Police [2012] NZHC 2003 at [10].

12 Bassett v Police; Eades v Police; Ramsay v Police; above n 7. See also Chapman v Police HC Christchurch CRI-2010-409-210, 30 November 2010 and Shaw v Police HC Rotorua CRI-2007- 463-127, 7 November 2007.

[25]   The Judge did not make a finding as to the gravity of Ms Aorangi’s carelessness. It would have been helpful for the Judge to have done so. A finding that the level of carelessness fell within the high, medium or low category will guide the end sentence imposed.

[26]   Mr Nolan has referred to a number of cases to support a submission that having regard to Ms Aorangi’s culpability, the sentence imposed is manifestly excessive. He submits that the facts of Simon v Police have similarities to Ms Aorangi’s offending.13 Mr Simon was driving on a sealed road with a posted speed limit of 80 kilometres per hour. The weather was fine, the road dry and was driving within the speed limit. He attempted to negotiate an easy to moderate left-hand turn. His vehicle crossed the centreline by a distance of 1.3 to 1.5 metres entering the southbound lane and colliding head-on with the victim’s vehicle. The victim died as a result. On appeal Mr Simon’s carelessness was assessed as being in the low to moderate range. The actual sentence imposed on Mr Simon has little bearing on the present case because he was already serving a sentence of imprisonment. Relevantly however, Katz J, after observing that the maximum penalty was three months’ imprisonment, commented that the sentence most commonly imposed appears to be community work, sometimes combined with reparation.14

[27]   In both Eades and Ramsay, the sentencing Judge assessed the driver’s level of culpability for careless driving causing death to be at the lower level of culpability and imposed sentences of community work alongside emotional harm reparation and disqualification.15

[28]   Mr Eades fell asleep at the wheel roughly close to his home, crashing into a lamp post and killing three family members, who were passengers in his vehicle. On appeal the offending was described as “carelessness at the lowest end of the spectrum”.16 Ms Ramsay struck an elderly person on a pedestrian crossing while driving after turning her head to wave at a friend. The pedestrian died as a result of the collision.

13     Simon v Police, above n 7.

14 At [2].

15     Eades v Police and Ramsay v Police, above n 7.

16 At [13].

[29]   It will be of no comfort to Mr Snode’s parents that the court’s focus in cases of this nature must be on the level of culpability of the offending driver rather than the consequences of the careless driving. That an innocent person was killed is inherent in the charge itself.

[30]   I am satisfied Ms Aorangi’s level of culpability falls towards the lower end of the scale. As Mr Nolan highlighted, there is no issue of speed, prolonged carelessness or the influence of alcohol or drugs. In my view, the carelessness was momentary inattention due to distraction, and the subsequent loss of control of the vehicle reflects Ms Aorangi’s inexperience as a driver. Although not directly related to culpability, it was not, in my view, appropriate that a learner driver picked up a hitchhiker. Driver distraction is a live issue at all times and for a learner driver to be potentially distracted by having a stranger in the vehicle is an ill-advised risk to take.

[31]   Having assessed the level of culpability as lower level, a sentence of community work coupled with emotional harm reparation and disqualification was, in my view, an appropriate end sentence, subject however to the appellant being willing and able to complete that sentence. But that is not the outcome Mr Nolan proposes.

[32]   Mr Nolan tells me that having abandoned an application for a discharge without conviction, he had submitted in the District Court that the appropriate end sentence was a period of disqualification together with an order to pay emotional harm reparation. On appeal Mr Nolan maintains that is the least restrictive appropriate sentence. However, he could not point to any case where a defendant convicted of low-level careless driving causing death had led to a sentence that did not incorporate a fine, community work or community detention.

[33]   The Judge did not discuss a sentence of community work. That is hardly surprising given the submission advanced for Ms Aorangi and the observations within the pre-sentence report raising doubts as to whether Ms Aorangi could complete that sentence. I am quite satisfied the Judge took the appellant’s injuries and study commitments into account.

[34]   During the course of the appeal, Mr Nolan took further instructions from    Ms Aorangi as to her ability to complete a sentence of community work. Mr Nolan then submitted that if the Court was not persuaded that a sentence of disqualification and emotional harm reparation was appropriate, that a sentence of community work should be imposed in substitution of the sentence of community detention.

[35]   I am not persuaded by that submission. Whilst I have found that a sentence of community work coupled with emotional harm reparation and disqualification might have been an appropriate sentence, whether the community detention sentence is manifestly excessive or inappropriate must be considered having regard to the appellant’s position at sentencing.

[36]   It is clear there were pre-sentence discussions between Ms Aorangi and the probation officer as to whether she could complete a sentence of community work. Ms Aorangi must have made it clear that she doubted she could. She must have known that in light of that position, the probation officer was recommending a sentence of community detention.

[37]   When speaking with the probation officer, Ms Aorangi quite responsibly and appropriately acknowledged that what she described as her immense guilt and remorse was such that any sentence she received “would be inadequate or come close to making things right for the victim and his family”. It is difficult to reconcile that position with her plea to this Court not to impose a punitive sentence.

[38]   It is not appropriate for a defendant to seek to avoid a particular sentence due to personal circumstances but then advocate for that sentence on appeal, and to do without offering evidence to explain the shift in position. In light of the material presented in the District Court, and acknowledging there is no tariff for the offence of careless use causing death, I am not satisfied that the sentence of three months’ community detention was either manifestly excessive or inappropriate.

[39]   Appropriately, Mr Nolan takes no issue with the disqualification period imposed or the emotional harm reparation order.

Result

[40]The appeal is dismissed.

...................................................

Eaton J

Solicitors:
Crown Solicitors, Christchurch

Counsel:
C G Nolan, Barrister, Christchurch