Grimme v Police

[2023] NZHC 3067

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI 2023-488-58

[2023] NZHC 3067

BETWEEN

ALEXANDER GRIMME

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	31 October 2023
Appearances:	M Nicholls for the appellant D Soich for the respondent
Judgment:	1 November 2023

JUDGMENT OF CAMPBELL J

[Appeal against Sentence]

This judgment was delivered by me on 1 November 2023 at 3.00 pm

Registrar/Deputy Registrar

GRIMME v NEW ZEALAND POLICE [2023] NZHC 3067 [1 November 2023]

Introduction

[1]    Mr Grimme pleaded guilty to a charge of careless driving causing death and  a charge of careless driving causing injury. On 31 July 2023, Judge H B Shortland sentenced him to 290 hours’ community work, 18 months’ disqualification from driving, and required a $3,000 emotional harm payment to be made to a charity of the deceased’s family’s choice.1 Mr Grimme appeals the disqualification period of the sentence.

The Offending

[2]    On 3 November 2022, Mr Grimme awoke at his Kerikeri home after sleeping for six hours. After exercising at his local gym for a couple of hours he left Kerikeri at about 7.30 am and  drove in  his  car to Whangārei  for  a work-related  course.  Mr Grimme was the sole occupant of the car.

[3]    On the way to Whangārei Mr Grimme stopped at Kawakawa for a coffee. The work course ran from 9 am to 5 pm. During that time Mr Grimme consumed further cups of coffee. He had a brief meal at the end of the course.

[4]    He departed Whangārei at 5.15 pm to return to Kerikeri. Again, he was the driver and sole occupant of his car. On this journey Mr Grimme was observed on several occasions drifting into the opposing lane before making sudden corrections back into his own lane.

[5]    At about 6.10 pm, after continuing along State Highway 10 past the intersection with Kerikeri Road, Mr Grimme approached a right-hand corner. He drifted into the southbound lane and suddenly corrected back into his own lane. The following corner was an easy left-hand bend. Mr Grimme again drifted into the opposing lane but did not correct himself, as he was asleep at the wheel.

[6]    Aaron and Sandra Donaldson were driving in the opposite direction. The two cars collided head on. The Donaldsons’ car suffered extensive damage. Aaron Donaldson suffered severe injuries to his chest, abdomen and pelvis. Those injuries

1      New Zealand Police v Grimme [2023] NZDC 16908.

were fatal.   Sandra Donaldson, who had been sitting in the front passenger seat, suffered facial bruising and cuts.

[7]    At 6.27 pm, Mr Grimme sent a text message admitting he had fallen asleep. In further messages that evening, Mr Grimme said that he had messed up, was sorry for his actions, had fallen asleep and that he had killed someone.

District Court judgment

[8]    Judge Shortland described the offending. He noted the impact the offending would continue to have on the Donaldson family and Mr Grimme.

[9]    The Judge identified an aggravating feature  of  the  offending  to  be  that  Mr Grimme was on notice that he was sleepy but continued to drive. He regarded  Mr Grimme’s genuine remorse, early guilty plea and willingness to participate in restorative justice, and good character, to be mitigating factors.

[10]   The pre-sentence report identified Mr Grimme as being low risk “in every aspect”. The Judge considered this consistent with the fact that Mr Grimme had not previously appeared before the court.

[11]   Judge Shortland said that in many respects he was bound by Bassett v New Zealand Police,2 a case that he had been referred to by both counsel. The Judge considered Mr Grimme’s culpability to be high, given that someone had lost their life and another was injured. The Judge said he was “bound by what the Bassett case suggests” and imposed a sentence of 290 hours’ community work and disqualified Mr Grimme from holding or obtaining a driver’s licence for 18 months. He further required an emotional harm payment of $3,000 to be made to a charity determined by the Donaldson family.

Grounds of appeal

[12]   Mr Grimme says the 18-month period of disqualification was manifestly excessive. He says the period of disqualification should not be more than 12 months.

2      Bassett v New Zealand Police [2014] NZHC 2188.

Principles governing sentence appeals

[13]   For a sentencing appeal to succeed the sentence generally must be shown to be manifestly excessive or wrong in principle.3 The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive generally depends on the end sentence imposed, rather than the process by which it is reached.4

Was the period of disqualification manifestly excessive?

[14]   Cases involving careless driving causing death are some of the most difficult sentencing decisions to come before the Court. As Williams J observed in Bassett, often the defendant is an otherwise responsible citizen, criminal culpability is at the lower end of the available spectrum, but the harm is catastrophic. His Honour said that victims will often see the sentence imposed as being a hopelessly inadequate recognition of the damage done, while the defendant may believe it greatly overstates his or her culpability.5 Williams J said that the best a sentencing court can do is be consistent.6 I respectfully agree.

[15]I have found the following comparator cases to be the most useful.

[16]   In Barr v New Zealand Police,7 Ms Barr drove into the path of a motorcyclist when exiting her driveway. The motorcyclist was killed. Ms Barr gave a full statement to Police immediately after the accident admitting her involvement. She pleaded guilty at the first possible opportunity. She was of good character and had made contributions to the community. In the District Court, Ms Barr was sentenced to 220 hours’ community work, a disqualification period of two years and six months, and ordered to pay reparation of $8,000. Ms Barr appealed.

[17]   On appeal, Asher J surveyed a range of other sentencing decisions involving careless driving causing death or serious injury.   He noted that the end periods of

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27] and [31]–[35].

4 At [36].

5      Bassett v New Zealand Police [2014] NZHC 2188 at [4]–[5].

6 At [5].

7      Barr v New Zealand Police HC Rotorua CRI-2011-463-42, 28 November 2011.

disqualification in each was between six months and one year.8 He considered the available range in the case before him was nine months to 18 months. Asher J found that the disqualification period imposed in the District Court was manifestly excessive by a considerable margin and described the sentence of community work as “very severe”.9 Given that it was too late to change the community work portion of the sentence, Asher J reduced the period of disqualification to nine months.

[18]   In Bassett, Mr Bassett fell asleep at the wheel after several unheeded warnings that he was tired. He crossed the centre line and collided with two cars. One person was killed and two injured. Mr Bassett was thoroughly remorseful, accepted full responsibility for his actions and pleaded guilty. He was in steady employment and held in high regard and had a previous good record. His sentence of 300 hours’ community work, 12 months’ disqualification and  $7,500  reparation  was  upheld on appeal.

[19]   In Simon v New Zealand Police,10 Mr Simon was driving on a sealed road within the speed limit. On a moderate turn, his car crossed the centre line and collided head on with the victim’s car. The victim died as a result. Mr Simon had no memory of the accident. He initially pleaded not guilty but changed his plea after reviewing the accident investigator’s report.  Mr Simon was not under the influence of drugs   or alcohol at the time of the accident. He had a historical conviction for driving with excess breath alcohol.  He did not have the previous good character found in some  of these cases, being already in prison on another matter at the time of his sentencing. The District Court disqualified Mr Simon from driving for a period of 18 months.  He appealed.

[20]   On appeal, Katz J assessed the degree of Mr Simon’s culpability as being low to moderate. Her Honour said it was similar to that of the defendant in Barr (nine months’ disqualification) but less than that of the defendant in Bassett (12 months’ disqualification). Katz J replaced the period of 18 months’ disqualification with one of 12 months’ disqualification.

8 At [28].

9      At [33]–[34].

10     Simon v New Zealand Police [2019] NZHC 2869.

[21]   In Sidhu v New Zealand Police,11 Mr Sidhu was a professional driver holding heavy traffic and professional licences. He was driving a light truck when he approached a moderate bend.  He crossed the centre line and collided head on with   a van. The driver of the van died. Mr Sidhu pleaded guilty at his second appearance. The District Court Judge setting a starting point of 360 hours’ community work, made deductions for his otherwise good character, remorse, early guilty plea and cooperation, resulting in 250 hours. He also sentenced Mr Sidhu to three months’ community detention, ordered him to pay $10,000 for emotional harm and disqualified him from holding a driver’s licence for 14 months. Mr Sidhu appealed.

[22]   Palmer J upheld the Judge’s sentence. He agreed with the Judge that the culpability of a professional truck driver may be greater than a non-professional driver for the same careless actions. He considered Mr Sidhu’s culpability relatively high. He described the sentence as stern but not out of line with other relevant cases, including Bassett.

[23]I make the following observations:

(a)Mr Grimme’s culpability is higher than that of Ms Barr and Mr Simon. Ms Barr and Mr Simon each had a momentary lapse of concentration. Mr Grimme had several warnings of his sleepiness yet continued to drive.  Mr Grimme’s  culpability is slightly below Mr Bassett’s (as Mr Bassett had three rather than two victims) and below that of Mr Sidhu (as Mr Grimme is not a professional driver).

(b)Mr Grimme has many personal factors in mitigation. I have read the many letters of reference that were before Judge Shortland. Mr Grimme is deeply remorseful. He has a previously good record, has been in employment for many years and is committed to his young family. He is of good character and has made contributions to his community. He pleaded guilty at the earliest opportunity. I consider that in these respects he cannot be distinguished from Ms Barr and Mr Bassett and is in a far better position than Mr Simon.

11     Sidhu v New Zealand Police [2019] NZHC 1168.

(c)In seeking consistency, it is necessary to look at the full suite of penalties that are imposed, particularly the period of any community work and the period of disqualification.

[24]   These comparisons suggest that Mr Grimme should have received a sentence above that imposed on Ms Barr, slightly below that imposed on Mr Bassett and Mr Simon, and below that imposed on Mr Sidhu. Taking into account the 290 hours’ community work for which Mr Grimme has been sentenced (slightly below that of Mr Bassett and well above that of Ms Barr), I consider that the period of disqualification for Mr Grimme should not have exceeded 12 months.

[25]   It follows that I consider the 18-month period of disqualification to have been manifestly excessive. I record that it appears that Judge Shortland was referred only to the Bassett decision and did not have the benefit that I received of submissions on a wider range of cases.

Result

[26]   I allow Mr Grimme’s appeal. I quash that part of the sentence that imposed an 18-month period of disqualification. In substitution, I disqualify Mr Grimme from holding or obtaining a driver’s licence for 12 months, that period to start on the date of Judge Shortland’s decision, 31 July 2023.

Campbell J