Hancy v R

[2009] NZCA 469

IN THE COURT OF APPEAL OF NEW ZEALAND

CA297/2009
[2009] NZCA 469

THE QUEEN

v

THOMAS JOSEPH HANCY

Hearing:8 September 2009

Court:Chambers, Rodney Hansen and Fogarty JJ

Counsel:A J Bailey and S F Bailey for Appellant

B D Tantrum for Crown

Judgment:13 October 2009 at 10 am

JUDGMENT OF THE COURT

A        An extension of time for appealing is granted.

B        The appeal against sentence is allowed. 

C        The sentence of five years three months’ imprisonment on the charge of causing grievous bodily harm is quashed and, in its place, a sentence of four years three months imprisonment is imposed. 

D        The order that the appellant serve a minimum period of imprisonment of three years is quashed and, in its place, an order is made that the appellant serve a minimum period of imprisonment of two years six months. 

E        All other sentences are confirmed. 

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

[1]       On 5 December 2008, driving a stolen car and pursued by the police, Mr Hancy collided with another vehicle at a light-controlled intersection, causing serious injury to the driver and a passenger of the other vehicle.  He pleaded guilty to seven charges arising from the episode.  The most serious was a charge under s 191(1) of the Crimes Act 1961 that, with intent to avoid arrest following the commission of a crime, he caused grievous bodily harm.  That charge carries a maximum sentence of 14 years imprisonment. 

[2]       Mr Hancy applies for an extension of time for appealing against a sentence of five years three months imprisonment, with a minimum period of imprisonment of three years.  He submits that Judge Noble wrongly applied the principles laid down in R v Taueki [2005] 3 NZLR 372 (CA) and the sentence is, as a result, manifestly excessive.

[3]       The short delay in filing the appeal has been satisfactorily explained.  There is no opposition to an extension of time.  We accordingly grant an extension of time for appealing.

Facts

[4]       Early in the evening on Friday, 5 December 2008, Mr Hancy and an associate stole a Subaru stationwagon parked in central Christchurch.  The associate drove the vehicle to Riccarton where he left the vehicle and Mr Hancy drove off alone.  Soon afterwards he was seen by a police patrol driving at 77 kilometres per hour on a street with a 50 kilometre per hour speed restriction.  The police activated their vehicle’s red and blue flashing lights and sounded their siren, indicating they wanted Mr Hancy to pull over. 

[5]       He attempted to flee the police, weaving in and out of traffic in both lanes of a two-way, two-laned road, also controlled by a 50 kilometre per hour speed restriction.  His speed was judged to be around 100 kilometres per hour.  On several occasions he crossed the centre line.  Other drivers were required to take evasive action.

[6]       He continued to drive at speeds approaching 120 kilometres per hour through central Christchurch.  On two occasions he drove through intersections against red light traffic signals.  At one stage he travelled the wrong way up a one-way street.  Several vehicles had to take evasive action to avoid being hit.

[7]       For a third time he entered an intersection against a red light traffic signal.  He narrowly avoided colliding with one vehicle before smashing head-on at high speed into the side of a Toyota motorcar proceeding through the intersection on a green light.  The force of the impact caused the Toyota to career out of control before mounting the footpath, shearing off a parking sign, and coming to rest against a building.  The driver of the Toyota took the full impact of the collision.  She received a massive head injury and for several days it was doubtful that she would survive.  She also received other serious injuries, including broken ribs.  She was hospitalised for eight weeks and continues to suffer from the after-effects of her injuries.

[8]       The front seat passenger of the Toyota also received serious injuries, including a fractured pelvis.  A 5-year-old child, restrained in the back seat of the car, received only minor injuries.

Sentence  

[9]       The Judge described the offending as involving “an appalling piece of driving” and as “one of the worst examples of this kind of driving” that he had had to deal with.  He said that Mr Hancy had driven with complete reckless disregard for the safety of others.

[10]     The Judge identified the following as aggravating features: that Mr Hancy had been driving a stolen car while disqualified at excessive speeds; that he had failed to stop for the police; the inevitability of the consequences; and the number of victims and the severe injuries and pecuniary loss they had sustained.

[11]     In determining a starting point, the Judge referred to Taueki and four cases where death or serious injury resulted from dangerous or reckless driving: R v Silbery HC CHCH CRI-2005-009-12625 12 April 2006; R v Norton HC CHCH CRI-2008-209-233 6 June 2008; Police v Sutherland HC WN CRI-2006-435-1 27 June 2006; and Police v Gregory HC WANG CRI-2007-483-000012 6 December 2007.  He noted the Crown’s submission that the starting point should be within band two of Taueki, between five and 10 years imprisonment, and that both the Crown and the defence had agreed that the Court would be assisted by references to the motoring cases referred to.  Having regard to the totality of the offending, he fixed the starting point at seven years. 

[12]     The Judge identified Mr Hancy’s previous offending as an aggravating feature.  Although only 19 years of age, he had accumulated 45 previous convictions, among them a substantial number for motoring offences, including at least one of reckless driving.  He had several convictions for violent offending, including one of injuring with intent.  At the time of the current offending he had only recently been released from sentences of imprisonment for, among other things, driving with excess blood alcohol and unlawful taking of a motor vehicle.  The Judge decided the previous offending warranted an uplift of nine months imprisonment.

[13]     In mitigation the Judge identified early pleas of guilty, Mr Hancy’s youth (although balanced by his previous convictions) and expressions of remorse.  These justified a reduction in sentence of two years six months to five years and three months.

[14]     The Judge saw the circumstances of the case as sufficiently exceptional to warrant a minimum period of imprisonment.  He referred in particular to the prolonged bad driving and the dreadful consequences to at least one of the victims, against the background of Mr Hancy’s previous convictions.  He fixed the minimum period of imprisonment at three years.

Appeal – submissions

[15]     Mr Bailey argues that the Judge erred in applying Taueki and that by analogy with cases on similar facts the starting point, and consequently the end sentence, was excessive.  He submits that, although this Court in Taueki expressly contemplated its application to offending under s 191(1), a reading of the judgment as a whole makes it clear that the guidelines are directed to cases involving the deliberate infliction of serious violence.  He points out that Mr Hancy’s offending could be brought within s 191(1), not because he meant to cause harm, but because he could have foreseen that his actions were likely to expose others to the risk of harm – R v Tihi [1989] 2 NZLR 29 at [31] (CA).

[16]     Mr Bailey argues that Mr Hancy’s culpability, based on the manner of his driving and the injuries to his victims, was no greater than the level of blameworthiness contemplated by a charge of dangerous or reckless driving causing injury under s 36 of the Land Transport Act 1998.  The maximum penalty for an offence under that section is five years imprisonment.  Mr Bailey submits that the starting point adopted by the Judge should not have exceeded the maximum sentence available under s 36.  He derives support from the principles of sentencing in s 8 of the Sentencing Act 2002, particularly the requirement in para (b) for the Court to take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences.

[17]     Mr Bailey submits that if, contrary to his primary submission, Taueki is applicable, the offending falls within band one as there is only one relevant factor present, namely, the serious injury to the victims.

[18]     Mr Tantrum’s position is that the offending was appropriately placed in band two of Taueki.  He submits there is more than one relevant aggravating feature present.  In addition to the serious injury caused, he argues that Mr Hancy used his vehicle as a weapon and that the victims were particularly vulnerable by virtue of being confined within their car and driving lawfully.

Decision

[19]     The offending fell within s 191(1) of the Crimes Act but we accept Mr Bailey’s submission that it did not involve the sort of conduct that s 191(1) is primarily concerned to capture.  As a result, the Taueki guidelines must be applied with care.

[20]     Section 191(1) provides:

Every one is liable to imprisonment for a term not exceeding 14 years who with intent—

(a)       To commit or facilitate the commission of any crime; or

(b)To avoid the detection of himself or of any other person in the commission of any crime; or

(c)To avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission of any crime—

wounds, maims, disfigures, or causes grievous bodily harm to any person, or stupefies or renders unconscious any person, or by any violent means renders any person incapable of resistance.

[21]     Mr Hancy’s conduct came within the section because, when the collision occurred, he was seeking to avoid arrest for theft of the car.  While it is not suggested that he deliberately set out to injure other road users, in terms of the analysis in Tihi, he would have foreseen that his actions were likely to expose others to the risk of harm.  This is not, however, the kind of offending to which the guidelines in Taueki can readily apply. 

[22]     This Court said in Taueki at [9] that, although focussing on offences under s 188(1) (referred to as “GBH offences” or “GBH offending”), it was anticipated the guidelines could apply, by analogy, to s 191(1) “and to other offences involving the infliction of serious violence”. The Court went on to say at [26] that an offender who has committed a GBH offence will have “acted with an intention of inflicting really serious harm to the victim”. It is clear that the Court did not turn its mind to those cases which fall within s 191(1) in which there is no deliberate intent to cause serious injury to the victim. In such cases the guidelines must perforce be applied with caution.

[23]     This Court in R v Brown [2009] NZCA 288 emphasised that, even in cases to which the guidelines could apply by analogy, care is required in applying the guidelines. The Court said:

[14]     It has become common practice to apply the Taueki guidelines by analogy not only to cases where the level of violence or intended harm is similar to that in ss 188(1) and 191(1), but also to cases involving the infliction, or intended infliction, of less serious harm, such as the offences in ss 188(2), 189 and 191(2). Considerable care is required in the application of the Taueki guidelines to such offending. Sections 188, 189 and 191 contain a quite complex matrix of different levels of intention and of consequences in the infliction of violence. The gradations involved require a close focus on the facts of each case. That will not be assisted by attempting to adapt the Taueki guidelines to offending which is essentially different in nature from that considered in Taueki. It is well established that the adaptation of the Taueki guidelines in such cases is not a matter of mechanical adjustment. That point is made in the decision of this Court in R v D [2008] NZCA 267 at [43]:

While adaptation of the Taueki guidelines is encouraged, mechanical arithmetical adjustment is not. Mechanical adaptation undermines judicial evaluation of the seriousness of the particular offending and the culpability of the offender, both of which are crucial parts of the sentencing process: see Taueki at [30].

[15]     The need for caution in the application of the Taueki guidelines assumes particular importance if an attempt is made to equate offending for less serious violence to the bands described at [36] to [41] of Taueki. The descriptions given of conduct falling within those bands are referable only to the categories of serious violence with which Taueki is directly concerned. That categorisation cannot be directly applied to the less serious levels of violence involved in other offending. Taueki is more properly applied, in such cases, by an appropriately adjusted application of the general statements of principle than by an adjusted application of the particular bands.

[24]     That the Taueki guidelines do not readily translate to the offending in this case is demonstrated by Mr Tantrum’s struggle to identify aggravating factors that would bring the offending within band two.  It cannot be realistically said that Mr Hancy used his car as a weapon.  That could have been arguable only if he had deliberately driven his car at the victim with the intention of causing harm as occurred in one of the cases referred to us – R v Goyen CA285/05 1 May 2006 and two of the cases referred to by the Judge – Sutherland and Gregory. 

[25]     Nor can it be said that the victim in this case was particularly vulnerable.  She was in the same position as any other road user.  It was pure chance that she became the unfortunate victim of Mr Hancy’s driving. 

[26]     There is therefore only one qualifying aggravating factor under the Taueki guidelines.  Band one would apply with a starting point of between three and six years. In deciding where within band one the starting point should be, some assistance may be found in cases involving reckless or dangerous driving causing injury or death.  This recognises the obligation under s 8(b) of the Sentencing Act to take into account the seriousness of the offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences.

[27]     The maximum penalty for reckless or dangerous driving causing death or injury, under s 36 Land Transport Act 1998, is five years imprisonment or a fine not exceeding $20,000.  There is no fixed tariff for such offending: R v Skerrett CA236/86 9 December 1986 and R v Fallowfield [1996] 3 NZLR 657 (CA). As this Court said in both cases, so much depends on the particular circumstances of the offending. In Skerrett this Court adopted the aggravating and mitigating factors for sentencing for reckless or dangerous driving causing injury or death identified by the English Court of Appeal in R v Boswell (1984) 79 Cr App R 277 at 282. The Court in Fallowfield confirmed that these factors remain a helpful guide: at 663. The English Court of Appeal has since updated the Boswell factors in R v Cooksley [2003] 3 All ER 40.

[28]     Where death ensues, it is common for the offender to be charged with manslaughter and for sentences of more than five years to be imposed in serious cases: see Fallowfield at 661. The Court noted that the purpose of charging manslaughter is to permit a penalty which exceeds the maximum provided by road safety legislation. The Court went on to observe (at 662), however, that while death will increase the seriousness of offending, other factors being equal, the consequences of offending are but one aspect to be taken into account in assessing culpability for sentencing purposes. Significantly for present purposes, the Court compared a course of the most outrageous conduct resulting in serious injuries leaving a victim to a lifetime of suffering with a minor act of carelessness by a person just over the lawful alcohol limit which results in death.

[29]     While it is not uncommon for sentences exceeding five years to be imposed in serious manslaughter cases, charges of dangerous or reckless driving causing death or injury invariably result in sentences well below the maximum of five years.  The authors of Becroft and Hall’s Transport Law are of the view that, where death has resulted, it is possible to discern a general sentencing range of 18 months to three years for cases without significant aggravating or mitigating factors: at [SPPC.8.3].  Their view is supported by the cases referred to at [SPPC.8.5] and [SPPC.8.6].  The highest sentence – following pleas of guilty to three charges of reckless driving causing death and one charge of reckless driving causing injury – was four years – R v Delany HC CHCH T95/02 16 April 2003.  The suggested range is also consistent with a submission made to this Court in R v Ellison [2007] NZCA 549 at [15] that recent cases referred to in argument revealed a starting point range for offences of dangerous or reckless driving causing death of between two and five years. In that case the Court upheld a sentence of two years six months imprisonment for what was described as a particularly bad case of reckless driving causing death (at [24]).

[30]     In some cases, where a driving offence results in injury, a sentence of more than five years may be both justified and permitted because the driving has involved the commission of a more serious offence.  The most common example is where a motor vehicle has been used to inflict intentional harm.  In Goyen, for example, this Court upheld a sentence of six years on a charge of causing grievous bodily harm with intent to cause grievous bodily harm where the appellant had twice deliberately driven his car into the victim.  In Gregory, where a sentence of five years imprisonment was upheld, the offender pleaded guilty to two charges of aggravated injury under s 191(2) after deliberately injuring a police constable and his wife who tried to apprehend him after he was detected stealing from a shop.

[31]     The offending in the present case involves a lesser order of culpability than those cases in which a vehicle has been used deliberately to inflict serious injury.  That said, the aggravating features are significant and include the following identified in Cooksley:

·Greatly excessive speed.

·A prolonged, persistent and deliberate course of very bad driving.

·Other offences committed at the same time, including driving while disqualified, failing to stop and unlawful taking of the vehicle.

·Serious injury to one of the victims.

It is also necessary to have regard to the legislative direction in s 191 that a greater level of culpability attaches when serious injury results in the circumstances set out in subs (1)(a) – (c), even when there is no deliberate intention to injure.

[32]     Having regard to these factors, we conclude that a starting point for the driving offences should have been five years.  We think an additional nine months should be added to take account of the associated offending, principally relating to the taking of the car, and the nine months uplift which the Judge appropriately fixed to take account of Mr Hancy’s previous offending.  We consider the one-third allowance made by the judge for mitigating factors to be appropriate.  Applied to the sentence of six years six months this produces an end point sentence of four years three months, which we consider adequately reflects Mr Hancy’s culpability.

[33]     There was no challenge to the Judge’s decision to impose a minimum period of imprisonment but an adjustment to the term is required.  A term of two years six months is in proportion to the minimum period of imprisonment imposed by the Judge.

Result

[34]     The appeal against sentence is allowed.  The sentence of five years three months on the charge of causing grievous bodily harm is quashed.  In its place, a sentence of four years three months imprisonment is imposed with a minimum period of imprisonment of two years six months.

Solicitors:
Crown Law Office, Wellington