Haskell v Police

[2012] NZHC 118

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2011-463-97 [2012] NZHC 118

SHANE ADRIAN HASKELL

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 February 2012 (Heard at HAMILTON)

Counsel:         B J Foote for Appellant

L Maynard for Respondent

Judgment:      10 February 2012

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

SHANE ADRIAN HASKELL V NEW ZEALAND POLICE HC ROT CRI-2011-463-97 [10 February 2012]

[1]      Mr Haskell pleaded guilty in the District Court to three charges of aggravated careless driving. Two of the charges were aggravated careless driving causing injury. The remaining charge was aggravated careless driving causing death.   The aggravating feature of each of the charges was that Mr Haskell had driven his truck on the wrong side of the road and had caused the injury to third parties as a result of doing so.

[2]      On 14 December 2011, Judge McGuire sentenced Mr Haskell to nine months imprisonment.   He also disqualified Mr Haskell from driving for a period of two years and directed him to make emotional harm payments to two named parties in the total sum of $4,000.[1]     The Judge deferred the start date of the sentence of imprisonment  for  two  months  on  humanitarian  grounds  in  order  to  enable  Mr Haskell to make appropriate arrangements regarding the management of his business

whilst he served his sentence.

[1] New Zealand Police v Haskell District Court Taupo CRI-2011-069-1970, 14 December 2011.

[3]      Mr Haskell now appeals to this Court against the sentence.  He submits that the Judge erred in principle in imposing a sentence of imprisonment, rather than home detention.

Background

[4]      The background to the matter needs to be set out in order to understand the issues that the appeal raises.   The charges arose from an incident that occurred at approximately 3.30 pm on Friday 8 April 2011.  On that date Mr Haskell was driving a Kenworth logging truck along an unsealed  forestry road to the east of Hatepe. The truck and trailer were empty, and the trailer was fastened on the rear of the truck.

[5]      Mr Haskell approached a right hand bend.  As he went round the bend, he was too far over to the right hand side.  He encountered a light Mazda truck coming in the opposite direction, and a head-on collision ensued.  As a result of the collision the Mazda truck was extensively damaged.   The driver of the truck was seriously injured and the passenger in the front seat was killed. A person travelling in the rear

compartment of the truck received moderate injuries.

The Judge’s decision

[6]      The Judge set out the facts of the case in greater detail than I have done.  He took the view that truck drivers have a responsibility to drive their vehicles in a responsible and professional manner.  He considered that Mr Haskell had breached this responsibility in the most fundamental way by failing to remain on the correct side of the road.

[7]      The Judge took the view that the circumstances of the case required him to place principles of denunciation, deterrence and accountability to the forefront.  For that reason he took a starting point of 18 months imprisonment.   He took into account several mitigating factors, including extreme remorse on the part of Mr Haskell, his willingness to take part in restorative justice, his willingness to pay reparation and an express desire by the surviving victims and their families that Mr Haskell should not receive a sentence of imprisonment for his wrongdoing.  Taking those matters into account, he reduced the sentence by 50 per cent to arrive at an end sentence of nine months imprisonment.

[8]      The essential point on appeal, as I have already recorded, is that Mr Haskell contends that the Judge ought to have imposed a sentence of home detention rather than imprisonment.   The Judge did not mention this issue at all in his sentencing remarks, notwithstanding the fact that the pre-sentence report included a home detention appendix.

[9]      The fact that the Judge did not expressly deal with this issue may have been due to one of two factors.  First, he may have considered that imprisonment was the only form of sentence that could properly address the sentencing principles and purposes that he identified.   Alternatively, he may have considered that the two alternatives  that  were open  to  him  were sentences  of community detention  and imprisonment.

[10]     I say this because, at the hearing in the District Court, counsel for Mr Haskell endeavoured to persuade the Judge to impose a sentence of community detention. His aim in doing so was to achieve an outcome for Mr Haskell that would enable

him to continue driving his logging truck, and thereby not face financial ruin.  That would not be possible if a sentence of home detention was imposed, because that sentence requires the offender to remain at all times within areas having cellular coverage.  Mr Haskell’s driving activities often take him into areas where there is no cellular coverage.

[11]     For this reason the Judge may not have given thought to the prospect of imposing a sentence of home detention.  He may have concluded that a sentence of community detention would be manifestly inadequate, and that a sentence of imprisonment was the only realistic alternative.  Given the lack of any reasons as to the choice of sentence, however, I am left to speculate to some extent regarding the reasoning process that the Judge undertook.

Decision

[12]     There  are undoubtedly  serious  aspects  to  Mr  Haskell’s  offending.   They include the fact that he effectively travelled around a blind corner on the wrong side of the road.   He knew that the road was used by other vehicles, including both logging trucks and private vehicles.  He was also aware of a sign at the beginning of the road that clearly advised truck drivers to drive to the conditions and not to rely on their radios for information as to other traffic in the area.  He was driving a very large  vehicle,  and  the  consequences  of  encountering  any  traffic  coming  in  the opposite direction were undoubtedly going to be severe.

[13]     The collision had catastrophic consequences.   It led to the death of one person and to the very serious injury of another.  The victim impact statements from the families of the victims make it clear that Mr Haskell’s offending has had a devastating effect upon them.  No sentence that the Court can impose can rectify that situation, but the consequences of offending and their effect on victims is always a matter that a sentencing Court must take into account.

[14]     All of these factors are reflected in the starting point that the Judge adopted, and with which there is no quarrel taken today.

[15]     The Judge also appears to have been influenced in his choice of sentence by a perception that this incident was not an isolated incident, and that it represented a growing trend among truck drivers to drive in a manner below the standard that the law  requires.    I  say  this  because  of  the  following  passage  from  the  Judge’s sentencing remarks:

[7]       One of the matters I need to mention is that so far as my own personal recollection is concerned, this is the second virtually identical crash causing death that has occurred in our forests here in the last five years.  The last one, as I recall, was in the forests near Kawerau where the logging truck driver  drove  into  a  blind  corner  on  the  wrong  side  of  the  road.    Now whatever else emerges from this tragedy, and it is a profound tragedy for all concerned, it seems to me, at very least, there needs to be a quantum culture change within those who use forest roads and I had read statements made, not only by you, but by the other truck that was ahead of you and there seems to be an absurd reliance in some cases on the fact that if no one calls you on the radio, there is no one else in the forest and that as a proposition, as I say, is absurd.

[16]     The Judge also referred to the fact that in virtually every other case that counsel had referred to him a sentence of imprisonment had been imposed.   That remark needs to be qualified, because many of the cases that counsel for Mr Haskell referred to the Judge had resulted in sentences other than imprisonment being imposed.

[17]     There is also a very real danger in comparing the circumstances of any given case with those, and the sentence imposed, in other cases.  Offending such as this can occur in an infinite variety of situations and it is very difficult to compare like with like.   In addition, the personal circumstances of offenders differ widely, and this means  that  different  types  of  sentences  are  appropriate  for  different  types  of offenders.

[18]     The authority that comes closest to the facts in the present case is that in Police v Wilson.[2]    In that case the driver of a heavy truck and trailer was observed travelling at more than 100 kilometres per hour along State Highway 28 near Tirau. He went around a left hand bend, and the trailer tipped over.  This caused pre-cut packets of timber on the trailer to fall off the trailer and onto a car travelling in the

opposite direction.   The resulting impact left the driver of the other vehicle with

injuries that can only be described as horrific.    In that case Judge Weir selected a starting point of 18 months imprisonment and ultimately imposed a sentence of nine months imprisonment.

[2] Police v Wilson DC Tokoroa CRI-2008-077-397, 6 March 2009.

[19]     That facts of that case have some obvious differences to those in the present. First, the offending occurred on a state highway, when the driver of the truck could expect there to be a large number of road users in the immediate vicinity.  Secondly, the offender had a lengthy list of previous convictions, including several serious convictions for driving-related offending.  Neither of those factors is present in this case.

[20]     Counsel for the respondent was not counsel for the prosecution at the hearing in the District Court.  Counsel for the appellant, however, was.  He has advised me during the course of submissions today that the prosecutor in the District Court did not make any submissions to the Judge regarding the appropriateness or otherwise of a sentence of home detention.  He also advises me that the prosecutor did not make submissions to the Judge directed to the proposition that offending such as this was becoming more prevalent in the Bay of Plenty area to the extent that some form of uplift in sentencing was required.

[21]     There are few mitigating factors about the offending.  It did, however, occur on a back country road where Mr Haskell might have been reassured by the fact that a large volume of traffic would not be present.  Although it was foolhardy of him to rely exclusively on the fact that he had not received any indication from other vehicles in the area of the existence of the truck, one can understand that truck drivers in his position from time to time do come to depend on radio information for this in reaching their decisions.   Having said that, there is no excuse at all for travelling on the wrong side of a blind corner.

[22]     The issue that troubles me is that Mr Haskell effectively presents as a first offender.   He pleaded guilty at an early stage, after initial charges of dangerous driving had been withdrawn by the prosecution.  He had expressed sincere remorse and a willingness to attend restorative justice meetings with the victims of his offending.  He had also offered to pay reparation and, even now, has an offer from a

third party of funds to pay an increased amount of reparation to the victims of his offending.    In those circumstances, I consider that the Judge needed to outline why, in his view, a sentence of home detention was ruled out.

[23]     I  accept  that  issues  of  deterrence,  accountability  and  denunciation  are important in offending such as this.  Nevertheless, as the judgment of the Court of Appeal in R v Iosefa[3] demonstrates, in appropriate cases they can be adequately met

by a sentence of home detention.  In that case the Court said:[4]

The sentence of home detention introduced by the 2007 amendment indeed provide4s  a  real  alternative  to  imprisonment.     It  carries  with  it  in considerable measure, the principles of deterrence and denunciation.   It is clear parliamentary policy that for short term sentences, those of two years or less, the restriction on liberty through home detention can more appropriately be imposed by a sentence of home detention than by imprisonment.  In cases of more serious offending which justify a sentence greater than two years, the sentence of home detention will not be available and in such cases in accordance with the hierarchy of sentencing in s 10(A) a sentence of imprisonment usually will be required to reflect the purposes of denunciation and deterrence.

[3] R v Iosefa [2008] NZCA 453.

[4] At [41].

[24]     As  the  Judge  remarked,  a  sentence  of  imprisonment  is  likely  to  have disastrous consequences for Mr Haskell.   It was likely at that stage to destroy his business, although I am advised from the bar today that he has now found another driver who will take over driving of the truck whilst Mr Haskell is unable to do so.

[25]     It is also significant in the present case that the views of the victims, as expressed to the Judge at sentencing, were to the effect that there was no point in further ruining Mr Haskell’s life by imposing a sentence of imprisonment.  As the Judge remarked, that was a very charitable gesture on their part and it is one that should, in my view, play some part in the ultimate outcome.

[26]     I  have  therefore  reached  the  conclusion  that  the  issues  that  the  Judge identified can be met with a sentence short of imprisonment.  That will not, in my view, send out the message that driving such as this is acceptable to the courts, or to society as a whole.   Mr Haskell has a suitable address at which he can serve the

sentence of home detention.  I consider, however, that a significant sentence of home

detention should be imposed to reflect the gravity of the offending and the very serious consequences that have occurred.

Result

[27]   For that reason the appeal is allowed.   The sentence of nine months imprisonment is quashed, as are the existing emotional harm payments.   In their place, Mr Haskell is sentenced to seven months home detention.  That sentence will commence on Tuesday 14 February 2012.

[28]     On that date he is to be at 16 Bronton Close, Taupo and he is to remain there for the duration of his sentence.  He is not to purchase, possess or consume alcohol or illicit drugs for the duration of the sentence.  He is to undertake such treatment and counselling as may be directed by his probation officer.   He is to report to a probation officer as requested.

[29]     In addition, I direct that he is to undertake 200 hours of community work as directed by his probation officer.   Furthermore, he is directed to make emotional harm payments to the daughter of the deceased passenger of the Mazda truck in the sum of $5,000 and to the partner of the seriously injured front seat passenger in the sum of $5,000.

[30]     Mr Haskell is to remain on bail on existing terms until 14 February 2012.

Lang J

Solicitors:

Crown Solicitor, Rotorua
O’Sullivan Clemens, Rotorua