[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…
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.
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AGLC
E (CA689/10) v R [2010] NZCA 13
Case
[2010] NZCA 13
Decision Date
CaseChat Overview and Summary
In the Court of Appeal of New Zealand, the appellant, Christopher John Brook, challenged his sentence for vehicular manslaughter. Brook was 18 years old at the time of the offence, which occurred on 9 February 2008. He was driving a vehicle with five other passengers when a police officer attempted to stop him. Brook failed to stop and fled, leading to a chase. He lost control of the vehicle at a sharp bend, causing it to flip over and resulting in the death of one passenger and injuries to others. Brook had a previous conviction for driving with excess breath alcohol, which he maintained was not an excessive weight in the sentencing process. The High Court Judge sentenced Brook to six years imprisonment, which he appealed on the basis that the mitigating factors were not adequately considered. The Crown conceded that the sentence should have been five years and six months imprisonment.
The Court of Appeal considered whether the High Court Judge had attached too much weight to the previous conviction and whether there was an insufficient discount for mitigating factors. The Court concluded that although the previous conviction was a relevant factor, the uplift should have been modest, and the mitigating factors should have been given more significant weight. The Court found that a 15% deduction for the guilty plea, eight months for youth, and one month for the offer of amends resulted in a sentence of five years and six months imprisonment. The appeal was allowed, and the sentence was reduced accordingly.
The Court ordered that the sentence of six years imprisonment be quashed and a sentence of five years and six months imprisonment substituted. The decision was made in accordance with the Sentencing Act 2002 and relevant case law. The Court highlighted the importance of considering both aggravating and mitigating factors in sentencing and ensuring that the sentence reflects the individual circumstances of the offender and the offence.