Greacen v The King
[2024] NZHC 1482
•6 June 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2024-443-000016
[2024] NZHC 1482
BETWEEN JACOB GREACEN
Appellant
AND
THE KING
Respondent
Hearing: 30 May 2024 Appearances:
H Smith for the Appellant
J M Woodcock for the Crown
Judgment:
6 June 2024
JUDGMENT OF ROBINSON J
[Sentence appeal]
Solicitors/Counsel:
Ron Mansfield, Auckland (H Smith) Crown Solicitor, Wellington
GREACEN v R [2024] NZHC 1482 [6 June 2024]
Introduction
[1] On 17 April 2024 Judge GF Hikaka sentenced Mr Greacen to five years’ imprisonment1 on two charges of causing death while in charge of a motor vehicle,2 three charges of causing injury while in charge of a motor vehicle,3 and one charge of possessing methamphetamine.4
[2] Mr Greacen appeals. He says the sentence was manifestly excessive because the Judge failed to give appropriate reductions for his personal mitigating factors.
Offending
[3] The parties agree that Judge Hikaka accurately outlined the offending as follows:
[7] I will now refer to the summary of facts and that is the summary that you have accepted by way of your guilty pleas. It refers to about 1.19 am, 22 November 2022, there was a motor vehicle with five occupants eastbound on State Highway 3 in the Motunui area. It was being driven by the 22-year-old victim, Destiny Arano. At the same time, a van driven by you was westbound on the same road. You were on bail pending sentence on a charge of manufacturing methamphetamine.
[8] The summary goes on to refer to this particular road having two lanes, a painted centreline and fog lines. The road was in good condition. It was a rural area with a 100-kilometre an hour speed limit. The weather was fine, but the road was wet from earlier rain, and it was dark with no streetlights, given it was in a rural area.
[9] The five occupants of the approaching vehicle are all the victims, and that vehicle was travelling at a speed between 80 and 100 kilometres an hour. You were travelling at a speed between 107 and 131 kilometres an hour. As you approached a curve in the road, you moved into the eastbound lane into the path of the victims’ vehicle which was in that lane. Ms Arano did not initially realise your van was in her lane. By the time she did, your vehicle was on her side of the road. She tried to serve to the other side to avoid it, but it was too late.
[10] The vehicles collided close to the fog line in the eastbound lane. It was a head-on type collision with each vehicle impacted on the left side. The front
1 R v Greacen [2024] NZDC 8541 [Sentencing decision].
2 Land Transport Act 1998, s 61(2)(b) and 61(3AA). Maximum penalty of 10 years’ imprisonment or $20,000 fine.
3 Land Transport Act, s 61(2)(b) and 61(3). Maximum penalty of 5 years’ imprisonment or $20,000 fine.
4 Misuse of Drugs Act 1975, s 7(1)(a) and 7(2)(a). Maximum penalty of six months’ imprisonment or $1,000 fine or both.
passenger, 63-year-old Maraea Allen, and the left rear passenger, 23-year-old Te Matangi Broughton, were in that eastbound vehicle and sadly they both died at the scene.
[11] The surviving victims and you were taken to Base Hospital. A blood sample was taken at the hospital. Your blood was found to contain 0.78 milligrams per litre of blood and that 0.78 milligrams was Class A controlled drug methamphetamine and 0.1 milligrams per litre of prescription drug tramadol.
[12] The causative factors of the crash were identified as you failing to remain in the westbound lane, crossing into the path of the victims, and it has been acknowledged the effect of tiredness and methamphetamine in your system were the cause of the collision.
[4] In all, two people were killed and the surviving victims suffered serious physical and psychological injuries.
Background
[5] Mr Greacen is 35 years old. He has accrued 71 prior convictions between 2004 and February 2023. Fourteen of these are for drug-related offences, two involving cannabis and the rest methamphetamine. He has two drink driving convictions, one of which resulted in a sentence of two months’ imprisonment. He has other driving convictions including six for driving while disqualified.
[6] At the time of his offending on 22 November 2022, Mr Greacen was on bail in respect of one charge of producing or manufacturing methamphetamine. In February 2023 he pleaded guilty to that charge and remained on bail pending sentence. On 27 March 2023, Mr Greacen was arrested and charged with the offences involved in the present case. He was released on bail again.
[7] In May 2023, Mr Greacen was sentenced to two years and six months’ imprisonment on the charge of manufacturing methamphetamine.5 On 27 July 2023, Mr Greacen maintained his not guilty pleas and the matter was remanded to callover on 28 November 2023. Mr Greacen entered guilty pleas on 1 December 2023.
5 R v Greacen [2023] NZDC 10159.
District Court decision
[8] The Judge adopted an initial starting point of six years’ imprisonment. An uplift of 12 months was imposed to take into account Mr Greacen’s criminal history, and that he was on bail when he offended. The Judge also noted the following aggravating factors of the offending: the number of victims and the extent of the survivors’ injuries; the amount of methamphetamine and tramadol in his system at the time of his offending; and the speed at which he was travelling.
[9] In terms of discounts the Judge granted Mr Greacen a 15 per cent discount for his guilty plea. The Judge referred to “the very keen awareness by the victims of Mr Greacen’s offending to see matters progress so they can properly achieve some closure and get about healing”.6 His Honour acknowledged that the guilty plea shortened the time to resolve matters, but balanced that consideration against the victims’ grief and the emotional effects of the offending on the victims.7 He also considered that the guilty plea “did not come until late in the piece”.
[10] The Judge allowed a discount of “a small amount… no more than 10 per cent” to reflect Mr Greacen’s “background issues, the addiction issues, the remorse, his current diagnosis of PTSD as a result of his early life experiences, and the impact his own offending is having on himself and those he has offended against”.8
[11] Judge Hikaka applied the discount totalling 25 per cent to the uplifted term of seven years imprisonment, reducing the sentence to five years’ and three months imprisonment.9 He then allowed a further reduction of three months to recognise the totality principle, leading to an end sentence of five years imprisonment. This, together with Mr Greacen’s sentence of two years’ and six months imprisonment on
6 Sentencing decision, above n 1, at [39].
7 Sentencing decision, above n 1, at [40].
8 Sentencing decision, above n 1, at [49].
9 I agree with Ms Woodcock for the Crown that Judge Hikaka appears to have made an error in Mr Greacen’s favour by applying the five per cent reduction to the uplifted sentence of seven years’ imprisonment rather than to the six-year starting point, as required using the methodology set out by the Court of Appeal in Moses v R [2020] NZCA 296, [2020] NZLR 583. As such, Mr Greacen’s end sentence was three months lower than it would have been if the Moses methodology had been correctly applied.
the production of methamphetamine charge, led to a combined sentence of seven years’ and six months imprisonment.
Relevant legal principles
[12] The Court must allow an appeal if it is satisfied that there was an error in the sentence imposed and that a different sentence should be imposed.10 The Court’s focus is on the end sentence. If the process by which a sentencing judge arrives at the end sentence was flawed but the sentence can nonetheless be properly justified by accepted sentencing principles, then the appeal court will not intervene.11 Otherwise the Court must dismiss the appeal.12
Appellant submissions
[13] Mr Greacen does not challenge the Judge’s starting point of six years, or the 12-month uplift. But Mr Smith for Mr Greacen submits the discounts were inadequate and the end sentence was therefore manifestly excessive. Instead of just 25 per cent (15 per cent for guilty plea and 10 per cent for other factors) Mr Smith submits that the Judge should have allowed a total discount of 50 per cent as follows:
(a)20 per cent for Mr Greacen’s guilty plea;
(b)five per cent for remorse;
(c)15 per cent for his addiction issues and societal deprivation;
(d)five per cent for the lasting effects of the offending on Mr Greacen; and
(e)five per cent for rehabilitative efforts and community support.
10 Criminal Procedure Act 2011, s 250(2).
11 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [33] and [36].
12 Criminal Procedure Act, s 250(3).
Guilty plea
[14] First, as to Mr Greacen’s guilty plea, Mr Smith submits that a discount of 20 per cent should have been applied, instead of the 15 per cent discount that was applied by the Judge. He says there were delays in disclosure and difficulties arranging contact with counsel for which Mr Greacen cannot be blamed. He submits that taking these into account Mr Greacen should be treated as having pleaded guilty at the earliest opportunity. Mr Smith submits further that the Judge erred by placing weight on the victims’ families’ desire for prompt resolution at this stage of the analysis.
Remorse
[15] Citing the Supreme Court’s decision in Hessell v R,13 Mr Smith submits that a separate discount of five per cent should have been given for Mr Greacen’s genuine expression of remorse. Mr Smith refers to the letter Mr Greacen provided expressing his remorse. He also refers to the Provision of Advice to Courts (PAC) report which advises that “[Mr Greacen] is full of self-hatred and is emotional at interview discussing the impact of his actions on the family of the victims as well as his own family”.
Addiction issues/Cultural report
[16] Mr Smith refers me to a psychological report from Dr Visser and a cultural report from Ms Oakley. Mr Smith quite rightly points out that those reports make for very sad reading. Mr Greacen’s life has been plagued by trauma, tragedy, and a pervasive addiction to methamphetamine.
[17] Judge Hikaka recognised the dysfunctional environment in which Mr Greacen grew up, the abuse he suffered and witnessed, and his early exposure to violence, alcohol and drugs. However, the Judge noted that despite Mr Greacen’s best efforts, and the supportive sentences he has received in the past, he has been unsuccessful in dealing with his addiction.14 Judge Hikaka noted that in sentencing Mr Greacen on the manufacture of methamphetamine charge the Court referred to the number of times
13 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64].
14 At [45].
he has been given credit for his attempts to remain drug free. As such, Judge Hikaka considered that “the focus turns more toward the denunciation and deterrence principles of the Sentencing Act 2002 as well as needing to protect the community from Mr Greacen”.15
[18] Mr Smith submits that the Court of Appeal in Zhang v R has recognised that addiction is a mitigating consideration particularly in relation to methamphetamine offending.16 Mr Smith points out that the nature of addiction is such that relapses are common. He acknowledges the tragic consequences of Mr Greacen’s offending but submits that this should not detract from the impact that Mr Greacen’s addiction has had on his culpability.
[19] Similarly, Mr Smith submits that social, cultural and economic deprivation plays a causative role in offending and should attract reductions in sentence.17 He accepts that the gravity of the offending might reduce the extent of any discount allowed for such considerations, but submits it does not mean there should be no allowance at all. Mr Smith submits that Mr Greacen’s traumatic background and addiction issues made a causative contribution to his offending. He submits that a discrete reduction of 15 per cent is appropriate to reflect those factors.
Psychological impact of offending
[20] The 10 per cent reduction allowed by Judge Hikaka was for all factors personal to Mr Greacen including “his current diagnosis of PTSD as a result of his early life experiences, and the impact his own offending is having on himself…”. Mr Smith submits a discrete reduction of at least five per cent was required in recognition of the lasting impact this incident will continue to have on Mr Greacen. He says this is appropriate to recognise that Mr Greacen’s mental health will require close management and will make it particularly challenging for him to serve his sentence and integrate back into the community.
15 Sentencing decision, above n 1, at [45].
16 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [139]–[150].
17 Carr v R [2020] NZCA 357 at [65].
Rehabilitation
[21] Finally, Mr Smith submits that Mr Greacen should receive a discrete reduction of five per cent to reflect his rehabilitation efforts and his commitment to rehabilitation in the future. Although those efforts have not been successful to date, Mr Smith says he should receive some recognition for his motivation and preparedness to rehabilitate, both of which will be crucial if he is to address his addiction issues and break the cycle of his offending. Mr Greacen has previously self-referred to the Salvation Army Bridge AOD Programme, and is actively seeking to engage with appropriate programmes in custody. Mr Greacen was successfully running his own business. He has young children and is fortunate to have the ongoing support of family.
Analysis
[22] There is merit in many of Mr Smith’s submissions. I accept it would have been open to Judge Hikaka to have applied discrete and larger discounts in relation to some of the personal factors to which Mr Smith refers. In particular, I accept that Mr Greacen’s traumatic childhood led to his drug addiction which in turn made a causal contribution to his offending. I also accept that drug rehabilitation is not straightforward, and relapse is often a reality.
[23] However, I do not agree that Judge Hikaka erred. In my view the discounts he allowed were within the range reasonably available in the circumstances. Ultimately, I accept Ms Woodcock’s submission for the Crown that in all the circumstances a different sentence does not need to be imposed. Taking into account the nature and consequences of Mr Greacen’s offending, his criminal history and his personal circumstances, I do not consider the end sentence was manifestly excessive. Counsel did not refer me to any previous sentencing decisions to indicate that it was.
[24] In terms of the guilty plea, I accept that Mr Greacen was entitled to wait for full disclosure and to take legal advice before deciding whether to plead guilty. But in the circumstances I do not consider the 15 per cent discount allowed by Judge Hikaka was so low as to be unavailable as a matter of law.
Result
[25]The appeal is dismissed.
Robinson J
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