Brunt v The King
[2023] NZHC 451
•9 March 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2022-485-54
[2023] NZHC 451
LUCILLA LINDA BRUNT v
THE KING
Hearing: 2 March 2023 Appearances:
B J Dawson and J H Porter for the Appellant C T Hislop for the Respondent
Judgment:
9 March 2023
JUDGMENT OF COOKE J
(Appeal against conviction and sentence)
[1] Lucilla Brunt was charged with careless driving causing death and injury.1 Following a trial before Judge Mika she was convicted on 4 May 2022.2 She was sentenced to 200 hours’ community work and disqualified from driving for six months on 18 August 2022.3
[2] Ms Brunt appeals against the conviction. She also appeals against the failure of the Judge to discharge her without conviction and against her sentence.
1 Land Transport Act 1998, s 38; maximum penalty 3 months’ imprisonment, $4500.00 fine.
2 R v Brunt [2022] NZDC 6544.
3 R v Brunt [2022] NZDC 15783.
BRUNT v R [2023] NZHC 451 [9 March 2023]
Background
[3] On 14 November 2020, Ms Brunt was driving south on State Highway Two, Upper Hutt. Ms Brunt approached the intersection between State Highway Two and Gibbons Street, slowing and then stopping at a red light. She was in the right hand lane of the south-bound traffic. Mr David Armstrong was stopped at the same red light, one car back, in the left hand lane of the south-bound traffic. At the green light, both Ms Brunt and Mr Armstrong moved through the intersection, with Ms Brunt being positioned ahead of Mr Armstrong. Both vehicles sped up, and the two south- bound traffic lanes began to merge into a single lane. As they approached the merge, Mr Armstrong attempted to undertake Ms Brunt. Neither vehicle yielded, nor allowed the other to merge, and the two vehicles travelled parallel to each other in the single lane for 392 metres at an estimated speed of 103 km per hour.
[4] Mr Armstrong continued to attempt to undertake Ms Brunt. Ms Brunt’s vehicle then made contact with the right rear of Mr Armstrong’s vehicle, causing his vehicle to rotate clockwise and collide with oncoming north-bound vehicle travelling between 90-100 km per hour, causing serious injuries to Mark and Caron Lancaster.4 Mr Armstrong passed away at the scene. Ms Brunt was uninjured.
[5] Ms Brunt has worked for a government department for 11 years in an advisory capacity. She lives in the Wairarapa with her family. She has a 17 year old daughter of her own, a five year old daughter with her partner, and custody of her partner’s two children aged 15 and 13 years. She had no previous convictions at the time of this offence.
District Court decision
[6] The Judge framed the key issue as whether Ms Brunt maintained the standard of a reasonable and prudent driver in her response to Mr Armstrong’s driving. The Judge found there was contributory negligence on both Mr Armstrong’s and Ms Brunt’s part. He explained that a reasonable and prudent driver, having regard to the aggressive nature of Mr Armstrong’s driving, would have reduced their speed to
4 Fractured ribs and surgery for internal injuries.
allow Mr Armstrong to pass. Ms Brunt’s driving was considered to be sufficiently proximate, and while not the principal cause, it was a material cause of the collision that led directly to the death of Mr Armstrong. The Judge found that although Ms Brunt felt boxed in, the eyewitness evidence, the CCTV footage and the crash report made clear that Ms Brunt had a number of opportunities to reduce her speed before the end of the merge lane to allow Mr Armstrong to pass.
[7] In determining the sentence, the Judge applied Bassett v Police in which careless driving involving low to moderate culpability was said to produce an “end point of 200 hours’ community work”.5 A mandatory disqualification period of six months was also imposed.
Approach on appeal against conviction
[8] Ms Brunt appeals against her conviction under s 229 of the Criminal Procedure Act 2011. Under s 232(2)(b) and (c), this Court can only allow an appeal if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that a “miscarriage has occurred for any reason”. The Court must dismiss the appeal in any other case.6 A miscarriage of justice has occurred where “any error, irregularity or occurrence” has “created a real risk that the outcome of the trial was affected”.7 Not every error or irregularity causes a miscarriage of justice.8 A real risk that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”9 This standard means that an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe but that there is a real possibility the verdict would be unsafe.10 If, on appeal, the Court comes to a different view than the trial judge on the evidence, the appeal will be allowed.11 The Supreme Court in Sena v Police made clear that “in
5 Bassett v Police [2014] NZHC 2188 at [33].
6 Criminal Procedure Act, s 232(3).
7 Criminal Procedure Act, s 232(4).
8 Matenga v R [2009] NZSC 18 at [30], stating that “[a] miscarriage is more than an inconsequential or immaterial mistake or irregularity.”
9 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
10 At [110].
11 At [38].
assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had”.12
[9] Careless driving is prohibited under ss 37 and 38 of the Land Transport Act 1998. Section 38 provides:
[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.
[10] A careless driver is one who does not exercise the care and attention that a reasonable and prudent driver would exercise in the circumstances.13
[11] The appellant submits that the District Court placed too heavy a duty on Ms Brunt and erred in finding carelessness. In particular, the Court:
(a)did not have due regard to the objective of the Land Transport (Road User) Rules 2004 (the Road Rules);
(b)did not make do allowance for the agony of the moment; and
(c)failed to consider the consequences of the evasive action that would have supposedly been taken by a reasonable and prudent driver.
Assessment
[12] The appeal against conviction is advanced on two inter-related grounds. For the reasons outlined below I do not accept that either or both mean that the conviction should be overturned on appeal.
[13] First, Mr Dawson for the appellant emphasised that under the scheme of the Road Rules the starting point was that Ms Brunt was entitled to assume that Mr Armstrong would not undertake her on the left. He argued that she could not be
12 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
13 Simpson v Peat [1952] 2 QB 24 at 28; Williams v Police HC Christchurch AP89/95, 2 August 1995.
criticised for not taking evasive action in anticipation of aggressive and unlawful driving. Ms Brunt was entitled to proceed on the basis that Mr Armstrong would obey the Road Rules, and should not be found to have engaged in careless driving because she did not do so. He relied on two comparable cases to support his submission — Vai v Police where the Court found that a driver with the right of way was entitled to assume that the other driver would conform to the right of way rules, and Lowen v Police where the Court found it was unreasonable to expect that drivers take additional precautions to deal with drivers not conforming to the rules.14
[14] I do not accept these submissions. It is no answer to an allegation of careless driving to say that all Road Rules were being obeyed by a defendant. The duty to drive with care is an overriding duty. As is clear from the authorities, obeying the Road Rules does not mean there is no carelessness.15 A duty remains upon a driver to drive with care, including to take reasonable steps to avoid a collision. That includes a duty to act as a reasonable and prudent driver when responding to the inappropriate driving of others. Indeed responding to a situation of emerging risk in a prudent way may be even more important precisely because of the possible danger when others are driving in breach of the requirements. Appropriate allowance needs to be given when assessing whether the duty is met when a situation has arisen because of the surprising actions of others. But the overriding duty remains.
[15] The essence of the Judge’s finding in the present case was that Ms Brunt did not act in accordance with the duty in responding to Mr Armstrong’s unlawful driving. This has ultimately given rise to an accident. His Honour has found that the careless driving of both contributed to the accident. I see no error in the Judge’s approach, and I do not accept that the scheme of the Road Rules was inappropriately applied by the Judge in finding that Ms Brunt drove carelessly.
[16] Mr Dawson’s second related argument was that the Judge had not paid sufficient regard to what is described as the “agony of the moment”. He referred to a description of this concept in Shorter v Police in the following terms:16
14 Vai v Police HC Auckland AP115/93, 9 July 1993; Lowen v Police [2012] NZHC 2057 at [21]– [22]; Gracie v Police [2020] NZHC 3300 at [9]–[10].
15 Lewis v Police (1980) 1 CRNZ 659 at 662; Hurst v Police (1990) 5 CRNZ 506.
16 Shorter v Police HC Auckland AP238/97, 24 October 1997 at 3.
[T]he agony of the moment cases involve situations where, through no fault, a person driving a motor vehicle is faced with a sudden emergency and elects to take one of a number of options which may be open to him. In these cases he may elect to take the wrong option but the Courts have historically looked closely before finding a degree of negligence or carelessness in such a situation. The position in these cases is very different from one where the situation of emergency is created by the actions of the party against whom the [allegation] of carelessness is levelled.
[17] An illustration of the principle arose in Bannan v Ministry of Transport where Doogue J assessed that a finding of careless driving causing death at an intersection had placed too onerous a duty on a motorist where the other driver was supposed to give way.17 Mr Dawson relied on statements made by Ms Brunt that she “felt boxed in and like I couldn’t stop. There was traffic behind me.” He submitted she had found herself in the unenviable position of being sandwiched between an aggressive driver and high speed oncoming traffic, that she clearly intended no harm to anyone, and in her own words was motivated to keep her and her daughter who was in the car with her safe. He argued that a reasonable and prudent driver remains a human being not an automaton, and that the law allowed for errors of judgment in the agony of the moment.
[18] I accept that the agony of the moment concept was relevant to these circumstances, and needed to be assessed. The “agony of the moment” need not actually amount to agony, or to actions taken only in a moment. It includes the full range of human reactions to circumstances that may exist extending beyond split second judgments to situations involving longer periods of time. So when a driver responding to a dangerous manoeuvre by another driver does not brake because they thought braking might itself cause an accident, or simply panics and does not react with hindsight in the best way, they will not likely be found to have driven carelessly. As Mr Dawson submitted care is needed before criticising the driving of those put in such situations. Drivers are human beings, and it needs to be appreciated that people can act with fear and with other emotions when such situations arise.
[19] But I consider that due regard was given to such factors by the Judge. Ultimately careless driving cases turn on their own facts. The following features
17 Bannan v Ministry of Transport HC Rotorua AP74/89, 18 December 1989.
referred to in his decision illustrate why the Judge’s conclusion was an appropriate one in the present case:
(a)The evidence from a driver in a vehicle in front of Ms Brunt and Mr Armstrong was that she saw the developing situation thinking “something was about to happen”, and she accelerated to move further forward because of her concern. Equally a witness driving behind them slowed down because he thought “it wasn’t going to end well”. In other words independent witnesses in front and behind reacted by speeding up and slowing down to avoid becoming involved in the accident that they could see might unfold.
(b)The evidence was that the two cars drove side by side in a single lane at approximately 100 km an hour for nearly 400 meters, calculated to involve approximately 13 seconds. Even allowing for panic, or other human reaction, that is a significant period of time to engage in what must be regarded as risky driving. The obvious thing for Ms Brunt to do in the circumstances would have been to take her foot off the accelerator and allow Mr Armstrong to pass.
(c)Ms Brunt did not give evidence at trial to explain to the Court why she did not do so. Her statements made at the time were received in evidence, but even parts of those statements did not assist — she said she told her daughter to take her phone out to film what was developing, and that is not fully consistent with an agony of the moment contention. The burden of proof remained on the prosecution to prove the charge, but in the absence of evidence providing a response to the other factors I have referred to it was more difficult for the Court to accept an agony of the moment contention.
[20] I accordingly accept that it was open to the Judge to be satisfied that the prosecution had proved that Ms Brunt had engaged in careless driving that contributed to the accident causing death. He saw and heard the witnesses, viewed CCTV footage, and assessed the accident report provided by police. The ultimate findings are
appropriate. Precisely why Ms Brunt continued to drive alongside Mr Armstrong for that period of time is not clear — perhaps she felt that she should not yield to such driving by another. But no matter what she was thinking the circumstances revealed by the evidence demonstrated a lack of prudence in her reaction notwithstanding that the situation was not initially of her making.
[21]For these reasons the appeal against conviction is dismissed.
Appeal against discharge decision
[22] Ms Brunt also appeals against the Court’s decision not to discharge her without conviction under ss 106 and 107 of the Sentencing Act 2002. An appeal against the refusal to grant a discharge without conviction is a composite appeal against conviction and sentence.18 The basis for determining an appeal against a refusal to grant a discharge without conviction is whether a miscarriage of justice has occurred.19 The appeal against a refusal to discharge without conviction is conducted by way of rehearing.20 The appellant bears the onus of satisfying the appellate court that the trial court made an error resulting in a miscarriage of justice.
[23] Under ss 106 and 107 the Court engages in a three step process — identifying the gravity of the offence, identifying the indirect and direct consequences of a conviction, and determining whether the direct and indirect consequences would be out of all proportion to the gravity of the offending.21
[24] Mr Dawson for the appellant submitted that the Judge made no assessment of culpability in light of Mr Armstrong’s primary responsibility for the accident. He submitted that the level of carelessness here was low by any standard as it involved a momentary lack of judgment or miscalculation when Ms Brunt was otherwise acting in compliance with the law. He also submitted that the extra-judicial punishments suffered by Ms Brunt reduced the gravity of the offending, referring to evidence of the particular distress caused to her by the accident, and her remorse and depression
18 Jackson v R [2016] NZCA 627.
19 At [12].
20 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
21 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16]–[17].
arising as a consequence. He argued that the stigma of conviction far outweighed the low gravity nature of this offending.
[25] I do not accept that the Judge erred in deciding not to discharge Ms Brunt. It is quite clear that she has a considerable degree of remorse, and deep regret. She has engaged in restorative justice conferences and apologised to Mr Armstrong’s family. The accident has impacted on her in a significant way, and it seems likely to be a burden that she will carry with her for the rest of her life. But the emphasis under ss 106 and 107 is not on the adverse impacts of the offending, but the adverse impacts of a conviction. The impacts that I have referred to above are consequences of the offending itself. They are not caused by the entry of a conviction. I accept that such implications will be relevant to an assessment under ss 106 and 107 as they are associated with the implications of a conviction. But still the emphasis is on the implications of the conviction rather than the implications of the offending.
[26] I agree with the District Court Judge that the implications of the conviction did not outweigh the seriousness of the offending such that a conviction was out of all proportion. He assessed that Ms Brunt had no previous convictions, and noted that a criminal conviction in itself would be a black mark on her record. But he recorded the acknowledgement that the conviction would unlikely affect her employment opportunities. It was noted that she has a child with significant medical needs and that disqualification could impact on her ability to manage this, but the disqualification period has now been served. The Judge concluded that the implications were not particularly severe, and not out of all proportion to the gravity of the offending. I agree with his assessment.
[27] For these reasons I agree with the District Court Judge, and dismiss the appeal on this ground.
Appeal against sentence
[28] As indicated Ms Brunt was disqualified from driving for six months and was sentenced to 200 hours community work.
[29] Under s 250 of the Criminal Procedure Act the appeal court must allow the appeal if satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed.22 A sentence may be set aside where it is manifestly excessive.23 The focus is on the final sentence and whether that was in the available range, rather than the exact process by which it was reached.24 The Court will not intervene where the sentence is within range.25 But, if the Court determines that the sentence imposed is manifestly excessive, it will form its own view of the appropriate sentence.26
[30]When deciding upon the sentence the District Court Judge said:27
In the case that I referred to earlier of Bassett v Police, the High Court discussed relevant sentencing levels and observed that all other things being equal, careless driving causing death in which there is low to moderate culpability when viewed objectively will produce an end point of 200 hours’ community work, whereas serious additional culpability factors by reference to the actions of the driver or consequences of those actions produce an average sentence of 300 hours’ community work.
[31] As Mr Dawson submitted that is not quite what the High Court said in Bassett. Williams J said that careless driving causing death in which there is low to moderate culpability when viewed objectively will produce an end point of “up to” 200 hours’ community work. He then said that when culpability was serious or very serious 300 hours’ community work would be the upper end, and 200 hours the very bottom end.28
[32] What this contemplates is an overall assessment of the case. The Judge appears to have taken 200 hours as more in the nature of a tariff for careless driving causing death with low to moderate culpability, although he did take into account Ms Brunt’s genuine remorse.
[33] The ultimate question is whether the sentence was in the available range, not the process by which it is reached, however. But the Judge has not expressly assessed
22 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
23 At [33].
24 At [15].
25 Ripia v R [2011] NZCA 101 at [15].
26 Criminal Procedure Act 2011, s 251.
27 R v Brunt, above n 3, at [26].
28 Bassett v Police, above n 5, at [33].
the implications of this accident arising primarily as a consequence of the unsafe driving of another. The carelessness only arose by Ms Brunt’s failure to respond to this driving in a prudent manner. It is not suggested that Ms Brunt engaged in a drag race with Mr Armstrong. Her daughter was in the car with her. Rather she made a significant error of judgment in failing to respond to his unsafe driving more sensibly.
[34] These circumstances need to be taken into account when assessing the period of community service. Other cases demonstrate this, albeit that they all turn on their own facts. For example in Barr v Police Asher J observed that a starting point of 220 hours was the “absolute top of the range, if not beyond” in a case where the defendant drove out of his driveway into the path of a motorcyclist who was killed.29 In Eades v Police the defendant decided to keep driving notwithstanding he was fatigued and jet lagged. He fell asleep, driving into a lamppost injuring himself and killing three passengers. The High Court reduced his community work sentence from 150 hours to 60 hours.30 Neither of these cases involved situations created by unsafe driving of another driver, but both recognise the importance of a circumstantial assessment.
[35] I accept that Ms Brunt was responding to circumstances not of her making which caused danger to herself and her child, where her carelessness was in failing to respond in a sufficiently safe manner. That reduces the period of community work that should be imposed in my view. I take into account that a fine was not imposed as part of the sentence, and that it was based solely on disqualification and community work. I think it is important that Ms Brunt serve a significant sentence of community work. Indeed serving a community work sentence might be part of the process under which she comes to terms with what she has done not only as it affected the immediate victims of this offending, but also the community at large.
[36] But in the circumstances I conclude that the sentence was manifestly excessive. The sentence of 200 hours’ community work is set aside and replaced with a sentence of 120 hours community work.
29 Barr v Police HC Rotorua CRI-2011-463-42, 20 November 2011 at [33].
30 Eades v Police HC Christchurch CRI-2009-409-135, 3 December 2009.
[37]Accordingly, by way of summary:
(a)The appeal against conviction is dismissed.
(b)The appeal against the decision not to discharge the appellant is dismissed.
(c)The appeal against sentence is allowed, and the sentence of 200 hours’ community work replaced with 120 hours.
Cooke J
Solicitors:
Crown Law, Wellington for the Respondent
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