Begg v Police

[2016] NZHC 2639

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2016-025-000724 [2016] NZHC 2639

BETWEEN

JASON RICHARD BEGG

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	17 October 2016
Appearances:	R R Smith for the Appellant R Donnelly for the Respondent
Judgment:	2 November 2016

JUDGMENT OF NATION J

[1]      On 7 April 2015, Mr Begg was 24.  He had been suspended from driving for three months on 13 January 2016 because of accumulated demerit points.   On the night of 7 April 2015, he drove a vehicle with two young passengers throughout Invercargill and the central business district at times in excess of 160 kilometres per hour. This driving began about 11.00 p.m.

[2]      At about half an hour past midnight on Friday morning 8 April 2015, Mr Begg crashed the vehicle he was driving into the rear of a sedan travelling in the same direction at or below the speed limit there of 80 kilometres per hour.  There were eight occupants in that car.   The impact caused that vehicle’s fuel tank to explode into flames.  All eight occupants received injuries.  One of the victims had his pelvis snapped in half and cracked in one place, spent eight days in hospital and

was going to be off work for three months.

BEGG v POLICE [2016] NZHC 2639 [2 November 2016]

[3]      At the time of this driving, Mr Begg’s alcohol level was 630 micrograms of alcohol per litre of breath, compared to the legal limit of 250 micrograms of alcohol per litre of breath.  Mr Begg had a prior conviction for drink driving from 2011.

[4]      As a result of all that occurred, Mr Begg faced a number of charges to which he pleaded guilty.  He received an effective sentence for all offending of three years’ imprisonment.1    He was disqualified from holding or obtaining a driver licence for two years.  Certain other orders were made as to his having to obtain a zero alcohol licence if he was to obtain a licence in the future, and for emotional harm reparation to be paid to each of the victims of his driving.

[5]      Mr Begg appealed against the sentences imposed, arguing through counsel the sentence of imprisonment was manifestly excessive.

The District Court Judge’s sentencing

[6]      Mr Begg faced nine charges that on 8 April 2015 he drove a motor vehicle on the road where the crash ultimately causing injury occurred, when the proportion of alcohol in his breath exceeded 400 micrograms of alcohol per litre of breath in that it was 630 micrograms.2     A separate charge was brought in respect of the injuries caused to each person in the vehicle he collided with.  Passengers in his car were also injured.   On each of those charges he was liable to a maximum penalty of imprisonment for five years or a fine not exceeding $20,000.   He also faced nine charges of operating a motor vehicle recklessly in Invercargill and causing injury.3

Again, there were nine such charges because of the injury done to people in each car.

Mr Begg was also charged with driving when forbidden.  The maximum penalty for that offence was three months’ imprisonment or a fine not exceeding $4,500.4

[7]      The Judge detailed the nature of Mr Begg’s driving on the night in question, the ways in which it put those in his vehicle and others at grave risk.  She described his driving, understandably, as appalling.   She detailed the injuries that had been

inflicted on the people in the other vehicle.   She referred to his previous drink

1      New Zealand Police v Begg [2016] NZDC 14059.

2      Land Transport Act 1998, s 61(1)(a) and (3).

3      Section 36(1)(a) and (2).

4      Section 32(1)(c) and (3).

driving conviction of 15 March 2011 and a sustained loss of traction conviction in

2010  with  an  associated  conviction  for  careless  driving.    The  Judge  noted  the absence of any offer of reparation or attempts to accumulate savings that might have been used to make such an offer.  She also noted he had purchased a vehicle at a time when he was prohibited from driving, suggesting, again understandably, that he had no intention of complying with the effective suspension of his licence.  She said the only mitigating factor was his early pleas of guilty.

[8]      She referred to particular cases to which she had been referred by Mr Begg’s counsel.5    The Judge also expressly referred to other cases which she considered relevant.6

[9]      The Judge took the charges of driving with excess breath alcohol causing injury as the lead charges for which a starting point of three years was considered appropriate.  This was then uplifted by 12 months to reflect the separate (but related) nine counts of reckless driving causing injury.  Finally, one month uplifts in respect of the driving while suspended charge and Mr Begg’s history were applied, bringing the end starting point to 50 months’ imprisonment.

[10]     Mr  Begg  was  then  given  the  benefit  of  a  generous  discount  by way  of mitigation: full 25 per cent discount (12.5 months) for early guilty pleas but also a further discount of six weeks to arrive at an adjusted starting point of three years’ imprisonment.    She  then  stood  back  and  considered  whether  that  sentence  was wholly out of proportion to the gravity of Mr Begg’s overall offending, in breach of the totality principle.  She said she had formed a clear view it was not.  It was on that basis she imposed the ultimate sentence of three years’ imprisonment.

Appellant’s position

[11]     Mr Begg’s grounds of appeal were comparatively narrow.  Essentially, they condensed into two propositions:

5      Kahukura v Police [2014] NZHC 3254; Kerr v Police HC Invercargill CRI-2011-425-37, 25

October 2011; Huka v Police HC Auckland CRI-2008-404-17, 27 May 2008.

6      May v Police [2012] NZHC 624; Pho Fu v Police [2015] NZHC 3260; Gacitua v R [2013] NZCA 234.

(a)  the starting point of three years for the lead charges taken together was too high; and

(b) applying a 12 month uplift for the reckless driving charges was inappropriate in that it double-counted a range of factors which were taken into account in setting the lead charge starting point.

[12]     He  did  not  contest  the  appropriateness  of  the  one  month  uplift  for  his previous convictions and driving while forbidden.

[13]     Taken together, these two points led counsel for Mr Begg to submit that an appropriate end starting point was two and a half to three years, rather than four years and two months.   After application of the appropriate discounts by way of mitigation, a sentence of approximately two years’ imprisonment was suggested.

Respondent’s position

[14]     The Crown submitted that the end sentence of three years’ imprisonment could not be considered manifestly excessive, that a starting point of three years on the lead charges of excess breath alcohol causing injury with a 12 month uplift for reckless driving causing injury were within range.  The Crown did acknowledge that in arriving at her starting point on the lead charges, the Judge had taken into account a number of aspects of the reckless driving charges for which there had also been a further uplift of 12 months.  The Crown acknowledged that, on that basis, it could legitimately be argued that the reckless driving had been brought into account twice. The Crown nevertheless said it was the end sentence which was important and, however the matter was approached, the end sentence was within the available range and was not manifestly excessive.   It submitted the end sentence could also have been   appropriately  arrived  at  by  adopting  a  starting  point  of  three   years’ imprisonment for the reckless driving causing injury charges with an uplift of 12 months for the excess breath alcohol causing injury charges.

Principles on appeal

[15]     This appeal is an appeal against sentence and, as such, is brought under s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s

250 of that Act.

[16]     Specifically, this Court may only allow an appeal against sentence if it is satisfied that there has been an error in the imposition of the sentence and, in that event, a different sentence should be imposed.7

[17]     If the sentence under appeal may be properly justified, having regard to the relevant sentencing principles, it is not the place of this Court to intervene and substitute its own views for those of the sentencing Judge.  It is only if the sentence is “manifestly excessive” that the Court should interfere with the exercise of the Judge’s discretion. As Toogood J said in Larkin v Ministry of Development:8

[26]     The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.

[18]     The  way  the  Judge  approached  her  sentencing  task,  treating  a  certain category of offences as the lead offending, arriving at an appropriate starting point to reflect the aggravating and mitigating features of that offending, then adjusting through an uplift for other offending and a discount for guilty pleas, was all in accordance with the formulaic approach to sentencing mandated by the Court of

Appeal.9

[19]     On an appeal however, it is more appropriate for me to consider the totality of the offending and whether, against the totality of that offending, the end sentence has been shown to be manifestly excessive.  On an appeal, the Court of Appeal has said

the focus is on the end sentence rather than the process by which it is reached.10

7      Criminal Procedure Act 2011, s 250(2)-250(3).

8      Larkin v Ministry of Development [2015] NZHC 680, citing Ripia v R [2011] NZCA 101 at [15].

9      R v Taueki [2005] 3 NZLR 372 (CA).

10     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

The offending

[20]     This offending occurred when Mr Begg was driving a vehicle registered in the name of an associate but owned by him and purchased when his licence had been suspended because of demerit points.  He had consumed alcohol before driving and was significantly over the limit.  He was aged 24 but had three passengers in the car aged 15 and 16.

[21]     During the course of the night and for more than an hour before the ultimate collision, he drove at high speeds through Invercargill city and the central business district.  At times, he was travelling in excess of 160 kilometres per hour within the city boundary.  At one point in the central city, he reached a speed of 180 kilometres per hour as he travelled south through the town centre.  The speed was so high that it caused his engine to cut out.  He travelled past other motorists while driving at that speed.

[22]     During the course of that driving, all three female passengers repeatedly told him to slow down.  He passed another motorist at a roundabout, accelerated away from that motorist at a speed in excess of 80 kilometres per hour.   He narrowly missed a car as it pulled out on a street and drove past a marked police car at high speed, accelerating away from it at a speed in excess of 100 kilometres per hour. The police car initially started to move off and follow but decided not to engage in a pursuit given the wet road conditions and high speeds the defendant had reached. On the same street, he drove straight through an intersection without slowing or stopping at the give way controlling his travel.

[23]     He  then  drove  around  country  roads,  again  accelerating  away  from  a roundabout on State Highway 6 at high speed, heading back towards Invercargill city.  It was when he was about 500 metres from that roundabout that he crashed into the rear of a Ford Falcon sedan heading in the same direction.  It was travelling at or below the marked speed limit of 80 kilometres per hour.   The impact caused the Falcon’s rear fuel tank to explode into flames and caused it to spin around 360 degrees before coming to rest on the left side of the road, still burning. Mr Begg’s

vehicle went off to the left side of the road, colliding with a lighting pole and property fence, snapping the pole.

[24]     The eight occupants of that car managed to escape.   Two had singed hair. One had the serious injuries referred to earlier, which led to him being off work for three months, another suffered grazing and bruising to her left leg and hip and was left with a scar on her left hip.  The driver of the Ford Falcon suffered whiplash, a dislocated kneecap and bruising.   A 22 year old suffered post-crash concussion, lower back pain, shoulder and forearm injury and was unable to work for a time. Another passenger suffered lower spine bruising and muscle spasms, was admitted initially to the emergency department at the hospital, had to return to the hospital for further medication by injection some days later and was unable to return to normal work for more than a month.

[25]     When interviewed, Mr Begg admitted he had been driving at high speeds throughout the course of the night.   He said he was driving by the sound of his engine and not paying attention to the speedometer reading.   He acknowledged loving driving and taking risks.  In relation to the crash, he claimed he did not see the Ford Falcon until it was only a few metres away and could not avoid it.  He said his speed at the time of the collision would have been between 130 to 160 kilometres per hour. As a result of the collision, the Ford Falcon was a total loss.  The financial loss to others caused by Mr Begg’s driving was a little over $19,000.

Discussion

[26]     This admitted driving was seriously reckless.   In pleading guilty, Mr Begg was admitting that he knew of the risks he was taking in driving in this way.  In the particular circumstances, that risk was not just to himself but also to the young passengers in his vehicle and any other people who happened to be in the vicinity of his travel.  Given the way in which a motor vehicle can be lethal in the damage and injuries it can cause, Mr Begg’s driving was potentially going to cause serious injury or death to other people.  He drove recklessly over a sustained period, not just for the brief moments leading to the crash when people were injured.  He continued driving recklessly and at dangerous speeds even after his passengers had told him to slow

down.  Just how dangerous his driving was and how much it put others at risk were demonstrated by the fact he ultimately drove at high speed into the rear of a vehicle travelling in front of him at the speed limit, a vehicle which he claimed not to have seen or which obviously he could not have seen until it was too late because of the speed at which he was travelling.  People were injured as a result of his driving, one of them seriously.  It could easily have been worse.

[27]     Given the extent of his recklessness and the fact a number of people were injured as a result, in terms of the Sentencing Act 2002, the purposes of the sentence had to be primarily to hold him accountable for harm done to his victims but also to the community, to promote in him a sense of responsibility for how he had been driving, to denounce his conduct and to deter him and others from committing the same or a similar offence.  The circumstances were such that it was also appropriate for the Judge to have regard to the principle that a penalty near to the maximum prescribed for the offence must be imposed “if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to

the offender make that inappropriate”.11

[28]     Had just one person been injured as a result of Mr Begg’s reckless driving, the maximum penalty would have been five years.  In fact, nine people were injured. That made the consequences of his offending more serious but did not alter the degree and extent of recklessness involved.

[29]     This  offending  was  also  the  more  serious  because  it  occurred  when  Mr Begg’s alcohol level was well over the legal limit.  Those limits have been imposed because of the way it is recognised a person’s ability to drive appropriately and to exercise sound judgment will be detrimentally affected through the consumption of alcohol at levels above those limits.  That has clearly been a factor in this case with Mr Begg driving with no sense of responsibility to the passengers who were in his

car or other people who might be anywhere near his path of travel.

11     Sentencing Act 2002, s 8(d).

[30]     There was also an aggravating feature relating to Mr Begg personally given he had convictions from November 2010 for loss of traction and careless driving for which he was disqualified for nine months, and then convictions from March 2011, just three months later, for driving while disqualified and with an alcohol level of

479 micrograms of alcohol per litre of breath.

[31]     The only way in which Mr Begg demonstrated he was taking responsibility for how he had acted was through his guilty pleas.  Given his admissions as to the way he had been driving, there could have been no defence to the charges he faced. He was fortunate the Judge gave him the credit of a full discount of 25 per cent for his guilty pleas.

[32]     In Gacitua v R, the Court of Appeal said sentencing in cases in which death has  been  caused  by  dangerous  or  reckless  driving  or  driving  when  under  the influence of alcohol or drugs is highly fact-specific.12    The Court has said on numerous occasions that so much “depends on the particular circumstances of the offending”.13   In that case, the Court was considering an appeal against a sentence of three  years’ imprisonment  on  a  charge  of  reckless  driving  causing  death  and  a concurrent sentence of two years’ imprisonment on a charge of reckless driving causing injury.   The maximum sentence on the charge of reckless driving causing death was 10 years’ imprisonment.  The Court of Appeal upheld the sentence with approval of the Judge adopting a starting point for the offending of five years before a discount of 12 months for personal mitigating factors.

[33]     I have considered whether the sentence imposed on Mr Begg was manifestly excessive on the grounds it was significantly harsher than sentences imposed in similar cases.  As the Court of Appeal said, the sentences imposed are very much fact-specific so do differ from case to case.  The sentence imposed on Mr Begg was now however inconsistent with any pattern of sentencing for this type of offending to

the extent such a pattern emerges from cases that have come before the High Court.

12     Gacitua v R, above n 6.

[34]     Mr Smith did refer me to the judgments of Kahukura v Police and Kerr v Police.14     The sentences  imposed in the District Court in those cases  might be considered to be more lenient than those imposed on Mr Begg but, in each instance, on appeal the High Court was concerned only with whether home detention should have been imposed instead of imprisonment.   In each case, the original sentences were upheld.

[35]     Mr Smith also referred to the judgment of Heath J in Huka v Police from May 2008.15    The appellant there had been sentenced for two separate instances of offending.  The High Court there did reduce sentences imposed in the District Court of three years and two months to three years’ imprisonment.  In the course of that judgment however, Heath J had to review the sentence on a charge of dangerous driving  causing  injury  arising  out  of  the  second  incident.    The  appellant  had overtaken a vehicle on a blind corner, colliding with an oncoming vehicle, injuring

the driver of that  vehicle who suffered  a fracture of her left  tibia.    The Judge considered the aggravating features of the offending concerned:16

(a)  excessive speed;

(b)  a prolonged, persistent and deliberate course of bad driving;

(c)  aggressive driving in relation to the distance between himself and the

victim’s vehicles; and

(d)  the injuries suffered by the victim.

[36]     He  said  that,  keeping  in  mind  the  maximum  penalty  of  five  years’ imprisonment on the dangerous driving causing injury charge, an appropriate starting point would have been three years and six months’ imprisonment, to which could be added three months to reflect the previous criminal history.  Giving credit for guilty pleas of 25 per cent, he considered a sentence of two years and ten months could have been imposed just for that offending.  The offending did not include additional

alcohol-related charges as in Mr Begg’s case.

14     Kahukura v Police, above n 5; Kerr v Police, above n 5

15     Huka v Police, above n 5.

[37]     May v Police was a case where the appellant was involved in an incident in October 2011 of seriously bad driving, driving at a grossly excessive speed, colliding into the rear of a vehicle and then causing another collision with an oncoming vehicle which had resulted in serious injuries to the driver of that vehicle.17   He was found to have been driving with 172 milligrams of alcohol per 100 millilitres of blood. About a month later, in November 2011, he was also found to be driving with

a reading of 724 micrograms of alcohol per litre of breath.  On each occasion, he was also driving while disqualified.  He had a number of convictions for alcohol-related offending.   The District Court Judge arrived at a starting point of three years’ imprisonment for the offending in October 2011, having regard to the driver’s previous relevant offending, with a further two years for the excess blood alcohol charge and driving while disqualified for the November offending.  Allowing a 25 per cent discount for guilty pleas, this had resulted in an end sentence of three years and nine months.  He also imposed a minimum non-parole period of two-thirds of the sentence.

[38]     On appeal in the High Court, Collins J held that, allowing for a credit of 25 per cent for guilty pleas, the appropriate sentence for the October 2011 offending was  27  months’ imprisonment.    He considered  the appropriate sentence for the November 2011 offending, after a 25 per cent discount for guilty pleas, was nine months, resulting in an end sentence of three years’ imprisonment.  He also imposed a minimum non-parole period of two-thirds of the sentence imposed on the charges of driving with excess blood alcohol causing injury.

[39]     Although the offending in May v Police occurred on two separate occasions and included driving while disqualified, the sentencing resulting from the appeal, in my view, indicates the end sentence imposed on Mr Begg for the totality of his offending in the District Court was within the range reasonably available to the

sentencing Judge.

17     May v Police, above n 6.

Conclusion

[40]     For all these reasons, I am not persuaded that the sentence imposed by the sentencing Judge in the District Court was manifestly excessive.   The appeal is dismissed.

Solicitors:

Berry & Co., Invercargill

Preston Russell Law, Invercargill.