2015 the appellant pleaded guilty to one charge of driving dangerously causing death, an offence against s 36AA(a)(b) Land Transport Act 1998 carrying a maximum penalty of 10 years’ imprisonment, and five charges of driving dangerously causing injury, offences against s 36(1)(b) Land Transport Act 1998 carrying maximum penalties of five years’ imprisonment.

[2] On 9 June 2015 Judge Phillips in the District Court imposed the imprisonment sentence (along with orders which are not the subject of this appeal requiring the appellant to pay $61,890 in reparation and disqualifying him from driving for four years) and he declined the appellant’s request to commute the sentence to one of home detention. Mr Cao, however, was granted bail pending the
hearing of this appeal.

CAO v NZ POLICE [2015] NZHC 1793 [31 July 2015]

[3] This appeal is brought on two grounds:

(a) The first ground is that the starting point of three years, six months imprisonment adopted by Judge Phillips in the District Court was excessive; and

(b)The second is that in the circumstances of this case the Judge was wrong to reject home detention as the least restrictive and appropriate sentencing option.

Factual background

[4] At the time of this offending the appellant was in New Zealand on holiday with his parents, partner and friends. On the day in question, the appellant was on his fifth day driving in New Zealand, having obtained a rental vehicle when he arrived in Auckland and driven down to the South Island. He was driving from Christchurch to Dunedin with his group when they stopped at Moeraki Boulders between Oamaru and Dunedin. After spending some time there, the appellant drove the rental vehicle, with his parents and partner as passengers, back out onto State Highway 1 in the late afternoon. He turned left to travel south to Dunedin. It seems to be accepted that, after travelling approximately 450 metres on the correct left hand side of the State Highway, on an uphill section of the roadway he crossed the centreline, cutting a yellow no-passing line, to drive on the incorrect right hand side of the road. He continued to drive on that right hand side of the roadway for several hundred metres (it seems up to about 450 metres) up the hill until he reached the brow of the hill and came front on to a car occupied by the Marris family, driving north on the correct left hand side of the road. Inevitably there was a tragic collision, the young five year old daughter of the family, Ruby Marris, was killed,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cao v Police

Details

AGLC: Cao v Police [2015] NZHC 1793
Case: [2015] NZHC 1793
Decision Date: 31 July 2015

CaseChat Overview and Summary

The appellant, Mr Cao, appealed against the effective sentence of one year, six months’ imprisonment imposed on him by Judge Phillips in the District Court for driving dangerously causing death and injury. Mr Cao argued that the starting point of three years, six months imprisonment was excessive and that Judge Phillips was wrong to reject home detention as the least restrictive and appropriate sentencing option. The court considered the appellant’s arguments and found them to be without merit. The court found that the starting point adopted by Judge Phillips was within the appropriate range and the final sentence was not manifestly excessive. The court also found that Judge Phillips’ decision not to impose a sentence of home detention was within his discretion and was not an error of principle. The appeal was dismissed, and the sentence of one year, six months’ imprisonment was confirmed.

In arriving at its decision, the court noted that the appellant had driven on the wrong side of the road for a significant period of time, ignoring all indicators to keep left, and had done so with restricted vision ahead as the brow of a hill approached. The court found that the appellant’s culpability was high and that his driving had been grossly negligent and unacceptable. The court also noted that the appellant had driven for five days in New Zealand before the incident and had driven virtually the length of the North Island and down a significant part of the South Island. The court found that this was not a case of a recent arrival to the country making a momentary lapse and electing to drive on the wrong side of the road soon after picking up a rental vehicle in Auckland. The court found that the appellant had made a fundamental error and that his overall behaviour had bordered on gross recklessness. The court also found that Judge Phillips had correctly considered all relevant factors and purposes and principles in reaching his decision not to impose a sentence of home detention. The court found that in all the circumstances, the sentence of imprisonment was appropriate to mark society’s condemnation of this type of offending and to take into account the interests of the victims of the offending.

Orders