Barr v Police HC Rotorua CRI-2011-463-000042

[2011] NZHC 1917

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-463-000042

ALISON JENNIFER BARR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         28 November 2011

Counsel:         RO Gowing for Appellant

R Jenson for Respondent

Judgment:      28 November 2011

JUDGMENT OF ASHER J

Solicitors/Counsel:

Ronayne Hollister-Jones Lellman, DX HP40041, Tauranga 3141. Email:  [email protected]

Gowing & Co, PO Box 548, Whakatane. Email:  [email protected]

BARR V NZ POLICE HC ROT CRI-2011-463-000042 28 November 2011

Introduction

[1]      The appellant Alison Jennifer Barr appeals against the sentence imposed on her by Judge Watson in the District Court at Whakatane on one charge of careless driving causing death, to which she had pleaded guilty.

Background

[2]      At about 2.35pm on Wednesday, 24 November 2010 Ms Barr had driven her motor vehicle down her driveway where it joins State Highway 30.  She lived in a rural area.  Photographs of the scene show that she had some degree of visibility to her left, but that stopped at the point where the road veered left into a corner.  She had better visibility to her right.   Although there was a corner not far from the entrance to the driveway, there was no vegetation and limited fencing around that corner and the road could be seen for quite some further distance, both around that corner and up a slight hill.

[3]      She reported to the Police following the accident that she looked to both her right and left.   She saw two cars in the distance to the right but assessed their position as giving her ample time to turn right out onto the road.  The weather was fine and clear and the road surface dry. Traffic was light.

[4]      What Ms Barr did not notice was the victim, Craig Finau, travelling towards her on his Harley Davidson motorcycle.  Reports subsequent to the accident assess Mr Finau’s speed as being well within the speed limit of 100 kilometres per hour. There  can  be  no  doubt  that  Ms  Barr’s  vehicle  moved  directly  into  his  path. Ultimately Mr Finau’s speed on impact was 51 kilometres per hour.  The headlights of Mr Finau’s motorcycle were on.   He had commenced braking but was thrown from his motorcycle.  Both he and his motorcycle struck the right side of Ms Barr’s vehicle.  Mr Finau suffered serious injuries.  He was treated at the scene and flown to Tauranga hospital where he died from those injuries.

[5]      Immediately after the accident Ms Barr gave a full statement to the Police admitting her involvement.  She stated that she did not see the motorcycle until it

was too late.  She pleaded guilty at the first possible opportunity.  She was sentenced on 17 June 2011.

[6]      The Judge considered the pre-sentence report and four letters offered in Ms Barr’s support attesting to her good character and the many contributions she had made to the community.  There has been a meeting between her and Mrs Finau.  He referred to the victim impact statements and the emotional harm reparation report. He said in words that can only be echoed today, that there was nothing that he could do in respect of the sentencing that would in any way alter the terrible and life changing events of 24 November 2010.   It has to be said, having read the victim impact statements, that they were particularly powerful and moving.

[7]      The Judge determined an amount of reparation in the sum of $8,000.

[8]      In respect of the extent and nature of the carelessness involved, Mr Gowing had submitted  that it was carelessness at its lower end because it was a failure to see, in a fleeting moment, the oncoming motorcycle. The Judge stated:1

I do not accept that position.   I think that this is carelessness at a higher degree.   The conditions were favourable to Ms Barr when she exited the driveway.  The motorcycle was literally there to be seen – it was not and, as a consequence, death resulted.   The carelessness must be regarded, in my view, at an upper end.

[9]      The Judge indicated he would have been minded to impose a sentence in the vicinity of 300 hours’ community work but giving appropriate credit for the guilty plea and the other mitigating factors he imposed a sentence of 220 hours’ community service.   In respect of mandatory disqualification he took a starting point of three years and then giving credit for the mitigating factors decided on an end disqualification period of two years and six months.

The appeal

[10]     Mr Gowing focussed on two aspects of the decision.  First he contested the

Judge’s assessment of culpability.   He submitted that it was wrong to assess the

carelessness as at an ―upper end‖.  He did not contest in a particular way the $8,000 reparation although he noted that there was no justification given in the sentencing notes for that amount.  He referred to a number of comparable cases and submitted that the end sentence of 220 hours’ community work was severe.

[11]     Having  contested  the  assessment  of  culpability  he  turned  to  the  second primary focus of his submissions which was the period of disqualification of two years and six months.  He submitted that was clearly and manifestly excessive and that  a  disqualification  period  of  nine  months  was  in  all  the  circumstances appropriate.

[12]     Mr Jenson for the respondent submitted that the Judge’s end sentence was within the range.   He submitted that the assessment of culpability could not be faulted and that the period of disqualification, while severe, did not warrant correction.

Culpability

[13]     Both counsel accepted that in sentencing the approach set out in R v Taueki2 was appropriately applied.   It was necessary to first assess the culpability of the offending and determine an appropriate starting point, and then turn to mitigating factors.   They both accepted that this was in essence the approach taken by the Judge.

[14]     Assessing the level of culpability in respect of a charge of careless driving causing injury or death is difficult.   Section 38 of the Land Transport Act 1998 provides:

38   Contravention of section 8 causing injury or death

(1)   A person commits an offence if the person operates a vehicle on a road carelessly or without reasonable consideration for other persons using the road, and by that act or omission causes an injury to or the death of another person.

...

(2)   If  a  person  is  convicted  of  an  offence  against  subsection  (1)  or subsection (1A),—

(a)   The maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and

(b)   The court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.

...

[15]     By definition the culpability of the driver in  relation to the driving  will involve an assessment of the degree of carelessness.  The culpability can be expected to be less than in more serious driving charges such as aggravated careless use of vehicle causing injury or death (maximum penalty three years’ imprisonment) and dangerous driving causing death (maximum penalty 10 years’ imprisonment).  Cases brought under s 38 of the Land Transport Act referred to by counsel show that by and large the act or omission in question is a momentary error of judgment or lapse of attention which has a consequence of the motor vehicle being in a place that it should not be with serious consequences.

[16]     Both counsel spent some time trying to place the carelessness in the present case within an adjectival category.  They rightly referred to other comparable cases. I  do  not  propose  to  analyse  them  all.    However,  there  are  a  few  that  warrant particular reference.

[17]     Mr Gowing placed weight on a decision delivered the same day at the nearby District Court at Tauranga, Police v Beard.3    The case had some similarity to the present involving the offender emerging from a driveway, stopping and looking and pulling out in front of an approaching bike.  The incident occurred in the evening. As in this case there was a tragic consequence and the rider of the bike died.  Judge Clark in that case assessed the level of carelessness.  Ultimately the Judge concluded that the offending was ―towards the lower end of the scale‖.4   The end sentence was reparation  of  $7,500  and  disqualification  of  six  months.    Mr  Gowing  strongly

submitted that there was very little to distinguish that case from the present.

3      Police v Beard DC Tauranga CRI-2011-070-1635, 17 June 2011.

4 At [14].

[18]     Another  relevant  District  Court  decision  referred  to  by Mr  Gowing  was R v King.5   There Ms King was negotiating a right hand bend.  The Court regarded it as most likely that she observed a group of 10 cyclists and braked slightly.  When she did so that triggered a skid on the slightly damp road which caused her car to slide in an uncontrolled fashion across the centre line.  She collided with the cyclists and three were tragically killed.   The Court regarded the offending as  properly

characterised at the lower end of the scale of culpability.  Ms King was reported to be of good character with no previous criminal convictions.  She was sentenced to

300 hours’ community work, ordered to pay reparation on each of the three charges of $10,000 and disqualified from driving for one year.

[19]     Mr Gowing fairly referred to two other decisions of this Court where higher penalties were imposed.  In Ramsay v Police6  Ms Ramsay approached a pedestrian crossing and turned her head to wave to an acquaintance.  As a consequence of that momentary inattention her car struck a mobility scooter being operated by an elderly gentleman who later died of serious injuries.  The sentencing Judge accepted it was very much a situation of momentary inattention having catastrophic consequences,

and described the degree of negligence as low.  She imposed an end sentence of 200 hours’ community work, $3000 reparation and  15 months’ disqualification.   On appeal, this Court did not interfere with the sentence of community work but reduced the period of disqualification to 11 months.

[20]     In Tusa v Police7  the victim did not die but suffered serious injuries.   Mr Tusa, a bus driver, had failed to stop for a red light.  This Court observed that to fail to stop for a red light was a serious failure but accepted that the failure arose from a moment’s inattention.  The Court upheld a sentence of 200 hours’ community work, reparation of $4,000 and nine months’ disqualification.  An additional sentence of four months’ community detention was quashed.  This Court noted the fact that this was  a  ―bad  case‖  of  careless  driving  causing  injury  and  that  drivers  of  public

transport vehicles have a special need to keep a look out and take care.

5      R v King DC Morrinsville CRI-2010-039-909, 14 February 2011.

6      Ramsay v Police HC Timaru CRI-2008-476-23, 10 September 2008.

7      Tusa v Police HC Auckland CRI-2010-404-276, 15 November 2010.

[21]     There is little to be gained from trying to place carelessness within some sort of a fixed scale.  However, some assessment must be made by the Judge undertaking the sentencing exercise, whether or not it is described in terms of a scale.  I accept Mr Gowing’s submission that to assess this carelessness as being at ―an upper end‖ was  harsh.    She was  plainly inattentive but  careless  driving encompasses  more serious carelessness than in the present case.   That being said, Ms Barr made a serious error in failing to look right with adequate care and discern the approaching motorcycle.

[22]     What must also be taken into account in assessing the starting point is the consequences of the carelessness.  The fact that there are serious consequences for the victim is of course built into the offence.  However, s 38(1) of the Land Transport Act covers offending involving a range of possible consequences from injury to death.   One of the purposes of sentencing is to hold the offender accountable for

harm done to the victim.8

[23]     It  must  be  borne  in  mind  that  in  R  v  Fallowfield9   the  Court  of Appeal cautioned that the consequences for victims are only a factor to be weighed in assessing culpability for sentencing purposes.   Accepting that, it is undoubtedly relevant in assessing a starting point that an entirely innocent victim has died as a consequence of an act of careless driving.  The death that resulted demands a higher starting point than if the same careless driving caused only minor injury.  The Court must recognise the terrible consequences of the momentary carelessness.

[24]     In the circumstances imprisonment or other more serious penalties were not required.  Given that three months’ imprisonment and a fine not exceeding $4,500 were the maximum penalty, a less restrictive sentence of community work was the appropriate type of sentence to impose.

[25]     I place the level of culpability in terms of the carelessness as less than that shown in King (death of three cyclists) and about the same as that shown in Tusa

(serious injury by bus driver).  In terms of culpability it is difficult to differentiate

8      Sentencing Act 2002, s 7(1)(a).

9      R v Fallowfield [1996] 3 NZLR 657 (CA) at 662.

much between Ramsay and Beard as both involved a momentary lapse and the death of the victim.  In the end those sentence decisions were very different.

[26]     I conclude that the sentence imposed in Beard (no community work) must be regarded as extremely generous, and I put it to one side.  A sentence of less than that imposed in King and in the vicinity of those imposed in Tusa and Ramsay of around

200 hours’ community work with some considerable flex was within the range.  The starting point in fact reached by the Judge of 300 hours’ community work was at the absolute top of the range, if not beyond.   However, in assessing what level of appellate intervention is warranted, it is necessary to consider the whole suite of penalties that were imposed.

[27]     The sentence of reparation of $8,000 was not rationalised.   However, that is understandable given the obvious fact that it was out of the question that any sum of money could in any way meet the consequences of Mr Finau’s death.  Mrs Finau, quite understandably, refused to even engage in the question of what amount of reparation would be appropriate. A figure, however, does emerge in the pre-sentence report of $5,000 for each child, a total of $20,000.   In the end it is impossible to quarrel with the Judge’s assessment of $8,000.   In all the circumstances that was within the range and appropriate.  Indeed, it could have been higher.  It is to be noted that Ms Barr made it clear that she was able to meet any reparation payment that was ordered and would do so.

[28]   In the four cases that I have referred to in detail, the end periods of disqualification were between six months and one year: six months in Beard, one year in King, 11 months in Ramsay and nine months in Tusa.

[29]     Mr Jenson referred to the decision of Taimerua v Police10  where on more serious charges of aggravated careless use of a motor vehicle causing death the Judge formed the view that three years was the longest disqualification period available (there is no formal maximum).   It can be seen that a period of disqualification  for  that  period  might  be  warranted  if  there  were  particular

aggravating factors such as a previous recidivist record or a much greater degree of

10     Taimerua v Police HC Auckland CRI-2005-404-160, 4 July 2005.

carelessness  (although  in  those  circumstances  the  charge  is  likely  to  be  more serious).

[30]    Here these factors were not present.   It would seem that the range for disqualification  was  somewhere  between  a  minimum  of  nine  months  and  a maximum of 18 months.  For obvious reasons there is room for judicial discretion in the area.  However, there is no doubt that the starting point for the disqualification period of three years was manifestly excessive.

The end sentence

[31]     It is necessary to stand back and look at the sentence as a whole before deciding on the appropriate appellate intervention.

[32]     The  Judge  reduced  both  the  starting  point  adopted  in  relation  to  the community work and the disqualification period to take into account the early guilty plea and Ms Barr’s excellent character.  However, it has to be observed that the end discounts of less than a third were not generous.

[33]     The reparation ordered was justifiable in terms of the harm suffered and the means of the offender.  The starting point for community work was as I observed at absolute top of the range, if not beyond, but Mr Gowing in his submissions has not proposed a lower period, focusing more on the period of disqualification.  Much of Ms Barr’s sentence of community work has now been served.  The disqualification of two and a half years was manifestly excessive and by a considerable margin.

[34]     It is too late to effectively change the sentence of community work, and any change would come close to tinkering.   But I have decided that it is necessary to quash the sentence of disqualification.   The disqualification that I will impose in substitution will be at the lowest level available in the circumstances to recognise the reparation  ordered  and  the  very  severe  sentence  of  community  work.     The appropriate disqualification period in the circumstances is nine months.

[35]     The appeal will be allowed. The disqualification ordered of two years and six months is quashed.  It is replaced by a period of disqualification of nine months.

……………………………..

Asher J