E (CA689/10) v R

[2010] NZCA 13

IN THE COURT OF APPEAL OF NEW ZEALAND

CA750/2009
[2010] NZCA 13

BETWEENCHRISTOPHER JOHN BROOK

Appellant

ANDTHE QUEEN

Respondent

Hearing:10 February 2010

Court:Glazebrook, Venning and Miller JJ

Counsel:W N P van Vuuren for the Appellant

A M Powell for Respondent

Judgment:19 February 2010 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is allowed.  The sentence of six years imprisonment is quashed and a sentence of five years and six months imprisonment substituted.

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REASONS OF THE COURT

(Given by Miller J)

[1]        Mr Brook appeals against a sentence of six years imprisonment for vehicular manslaughter.  He accepts the starting point of seven years, but maintains that the High Court Judge erred by increasing the starting point too much for a previous drink-driving offence, and gave an insufficient discount the mitigating factors of youth, a guilty plea, and remorse.  The Crown accepts that the appropriate sentence was five years, six months imprisonment.

The facts

[2]        In the early hours of the morning of 9 February 2008 Mr Brook, then aged 18, was driving at Timaru, with five other young people in his car.  Three of the passengers were in the back seat with a fourth, Vianne Shead, lying across the laps of those three passengers.  Mr Brook should not have been driving at all because he was on a restricted licence and without a qualified driver in effective control of the car.  He had also been drinking. 

[3]        As Mr Brook drove along Church Street, a police officer tried to stop him by activating the patrol car’s flashing lights.  Mr Brook did not stop, although some of his passengers asked him to.  He fled.  The police continued to follow him, but did not keep up a pursuit.  He drove for more than 25 kilometres before failing to negotiate a sharp left-hand bend on Doake Road.  During the journey Mr Brook had exceeded speed limits and he approached the corner at a speed well in the excess of the advisory speed of 35 kilometres per hour, but he was not exceeding the speed limit when the vehicle left the road.

[4]        The vehicle went over a bank and flipped.  Ms Shead was killed, and the other passengers were injured, some very seriously.

[5]        An evidential breath test established that Mr Brook’s breath alcohol level was 150 micrograms of alcohol per litre of breath.  He was therefore within the legal limit.  He accounted for his refusal to stop by saying that he panicked and was scared of losing his licence again.  He had been convicted on 12 May 2007 for driving with excess breath alcohol, fined $400 and disqualified from driving for three months.  He had no other convictions.

[6]        Mr Brook was charged initially with reckless driving causing injury and failing to stop.  The manslaughter charge was laid on 8 May 2008 after completion of the police investigation, and on 26 September 2008 Mr Brook was committed for trial.  A s 347 Crimes Act 1961 application was argued on 25 March 2009 and dismissed.

[7]        On 7 May 2009 the indictment was amended to include a count of reckless driving causing death in the alternative to manslaughter.  On 11 June 2009 Mr Brook offered to plead guilty to the alternative count plus four counts of reckless driving causing injury.  (An offer to plead to similar charges had been rejected in July 2008.)  The Crown rejected the offer, and Mr Brook sought a sentence indication.

[8]        On 3 September 2009 Panckhurst J indicated that an appropriate starting point would be seven to eight years with a likely end point of five to six years.

[9]        On 21 September 2009 Mr Brook advised that he would plead guilty to the manslaughter count, and the plea was entered on 15 October.  His trial had been scheduled before Christmas 2009.

The sentencing decision

[10]       Fogarty J sentenced Mr Brook on 3 November 2009.  He recited the facts and accepted that the starting point should fall within a range of seven to eight years, referring to R v Tairi;[1]  R v Douglas;[2]  R v Silbery[3] and R v Norton.[4]  He noted the length of the car journey, which afforded the opportunity for Mr Brook to come to his senses.  He accepted that Mr Brook was travelling below the speed limit but too fast for the corner, and suggested that the manslaughter charge was directed at the length of the chase and alcohol consumption rather than driving fault.

[1]      R v Tairi  HC Hamilton T033323, 20 April 2004.

[2]      R v Douglas  HC Hamilton CRI-2004-079-000946, 13 July 2004.

[3]      R v Silbery HC  Christchurch CRI-2005-009-012625, 12 April 2006.

[4]      R v Norton HC Christchurch CRI-2008-209-000233, 6 June 2008.

[11]       The Judge referred to Mr Brook’s previous conviction, treating it as an aggravating factor.  With respect to mitigating factors, he accepted that Mr Brook was entitled to a discount of something more than ten per cent for the guilty plea.  It was legitimate to dispute the Crown’s decision to lay a manslaughter charge by pursuing a s 347 application, but Mr Brook did not enter a plea of guilty until some time after the application was dismissed.  He accepted that youth was also a mitigating factor.

[12]       The Judge did not quantify the uplift for the aggravating factor, or the discount for the mitigating factors, but rather bundled them to reach a deduction of one year from the starting point.  Mr Brook was also disqualified from holding or obtaining a driver’s licence for five years.

Too much weight attached to aggravating factor?

[13]       Mr van Vuuren argued that the Judge must have attached too much weight to the previous conviction.  Previous convictions are relevant when determining the character of the offender, and ought therefore to be set off against evidence of good character.  The previous conviction was for a minor offence.  An increase in the starting point of no more than three to six months was justified.

[14]       However, the Crown was prepared to concede that the previous conviction did not require an uplift.  It was of a different order of seriousness to the charge on which Mr Brook was being sentenced, and any significant uplift risks double punishment having regard to the modest maximum sentence for the previous offence.  Mr Powell submitted, however, that the previous conviction reduced any discount that Mr Brook would otherwise receive for being a first offender.

[15]       The Crown’s concession notwithstanding, we consider that it was open to Fogarty J to increase the starting point for the previous conviction.  It was a relevant previous conviction for purposes of s 9(1)(j) of the Sentencing Act 2002, for it demonstrated a predilection to commit driving offences and it explained why Mr Brook chose to flee.  Although he had not been drinking to excess on this occasion, he was driving contrary to the terms of his restricted licence.  It follows that the previous conviction did not merely deny him mitigation for previous good character.  Previous convictions which demonstrate a predilection for a particular type of offending, or a contempt for the law, warrant a sterner punishment, although the prisoner must not be punished again for past misdeeds:  R v Filo[5].  We accept, however, that the uplift must be modest since there was but one previous conviction, for a different and much less serious offence.

Mitigating factors

[5]      R v Filo [2007] NZCA 20.

[16]       Mr van Vuuren argued that no or insufficient weight was given to the guilty plea, youth, remorse, and good character.  The Crown maintained that the guilty plea justified a discount of only ten per cent, but accepted that some additional allowance ought to have been made for youth. 

[17]       The Judge indicated that he proposed to allow something more than ten per cent for the guilty plea, but did not specify how much.  Mr van Vuuren argued that some credit should be given for Mr Brook’s acceptance of responsibility for Ms Shead’s death, but the credit to be attributed to a late plea is not increased by a reasonable but ultimately unsuccessful attempt to secure a discharge, or by his willingness to plead guilty to lesser charges from the outset.  However, a discount of ten per cent may still be appropriate even when the plea is entered at the door of the Court.  In this case, the offer to plead was made formally about two months before trial.  We accept that a discount of 15 per cent was appropriate. 

[18]       Turning to the discount for youth, the Crown accepted that immaturity must have played a part.  There must be cases of vehicular manslaughter where denunciation and deterrence may outweigh the mitigating factor of youth, as sometimes happens in cases of very serious violent offending.  Further, the offending in this case had ceased to be impulsive by the time Mr Brook left the road.  However, we are prepared to accept the Crown’s concession that youth merited a discount in this case.

[19]       Mr van Vuuren argued that remorse ought to have attracted an additional discount.  He invited this Court to depart from its observations in R v Hessell[6] to the effect that remorse is best demonstrated by a guilty plea although exceptional remorse, demonstrated in a practical and material way, may justify an additional discount.  Genuine remorse must be taken into account under s 9(1)(f) of the Sentencing Act.  In this case, the remorse was real, and it was accompanied by an offer of amends in the form of payment for Ms Shead’s headstone, following an indication from her family that such an offer would be appropriate.  Payment was to have been made by Mr Brook’s parents.  It was not made in the end, because the offer was not accepted by Ms Shead’s family.  Nonetheless, it is submitted, credit should have been given for it.  Counsel contends that a discount of perhaps six months should be allowed for remorse, in addition to credit for the plea.

[6]      R v Hessell [2009] NZCA 450

[20]       We are not prepared to depart from what was said in Hessell on this point.  As the Court held there, remorse does not normally require a discount in addition to that attributed to a guilty plea.  It may do so where there is something exceptional about it, but this is not such a case.  Mr Brook’s regret is genuine, we accept, but it cannot be considered exceptional when it was not demonstrated by an early guilty plea.  Indeed, the plea was entered only after a sentencing indication.  So far as the offer of amends is concerned, it seems that Fogarty J was told of the offer during the sentencing hearing but declined to take it into account.  We accept that an offer of amends is a mandatory consideration under s 9(2)(f) of the Sentencing Act, although little if any weight need be attached to it where the victim does not accept it as expiating or mitigating the wrong.  In this case it was made at the suggestion of Ms Shead’s family and was clearly genuine.  A modest allowance could properly be made for it, although this consideration alone would not justify disturbing the sentence.

Should the sentence be reduced?

[21]       We accept that Fogarty J did give credit for the mitigating factors he identified.  If one assumes an uplift of three months for the previous conviction and a deduction of a little over ten per cent for the guilty plea, an allowance of something less than six months was made for the other mitigating factors.

[22]       However, in light of the Crown’s concession we are prepared to accept that that the overall allowance for mitigating factors was insufficient, resulting in a modest adjustment to the sentence.  We would increase the starting point by three months for the previous conviction and allow eight months for youth and one month for the offer of amends.  A 15 per cent deduction for the guilty plea results in a sentence of five years six months imprisonment.

Decision

[23]       The appeal is allowed.  The sentence of six years imprisonment is quashed and a sentence of five years and six months imprisonment substituted.

Solicitors:

Petrie Mayman Clark, Timaru for Appellant

Crown Law Office, Wellington for Respondent