Hitchens v The Queen

[2004] NZCA 33

IN THE COURT OF APPEAL OF NEW ZEALAND

CA380/03

THE QUEEN

v

WILLIAM JAMES HITCHENS

Hearing:10 March 2004

Coram:Glazebrook J
John Hansen J
Ronald Young J

Appearances:  S J Shamy for Appellant

A M Powell for Crown

Judgment:25 March 2004 

JUDGMENT OF THE COURT DELIVERED BY RONALD YOUNG J

[1]       In the early hours of 29 September 2001 the appellant was driving a Ford Cortina motor vehicle on McLeans Island Road, Christchurch.  He lost control of the vehicle and collided with a power pole.  As a result of the accident, the front seat passenger was killed, two rear seat passengers and the appellant were injured.  The appellant was found to be driving with an excess breath alcohol level taken several hours after the accident of 157 milligrams of alcohol per 100 millilitres of blood.  The appellant pleaded guilty on arraignment to one count of driving with excess breath alcohol causing death and two counts involving injury (s61 Land Transport Act 1998).  He was sentenced to 3½ years imprisonment.  He now appeals against that sentence submitting it was manifestly excessive.

Background facts

[2]        During the afternoon and evening of 28 September 2001 the appellant and his three friends had spent time drinking and driving around the city in the appellant’s car.  One of the young men in the car, Mr Daniel Price-McGirr, was nominated as the sober driver.  He ultimately died in the accident.  At about 11.40 p.m. the vehicle was stopped by the police and Mr Price-McGirr was found to be driving.  It is not known what happened between 11.40 p.m. and 5.00 a.m. when the accident occurred.  By 4.45 a.m. the appellant was driving his Ford Cortina on McLeans Island Road.  The maximum speed allowed is 100 kilometres per hour.  As the vehicle approached a sharp right-hand corner it was estimated to be doing approximately 95 kilometres per hour.  Its speed reduced to approximately 88 kilometres per hour as the vehicle began to slide and the appellant began to lose control.  The corner had an advisory speed of 35 kilometres per hour.  The evidence for the prosecution was that the vehicle left the road at a speed between 70 and 75 kilometres per hour and hit the power pole at approximately 70 kilometres per hour.  The expert witness briefed by the defence estimated an impact speed at least 63 kilometres per hour.

[3]        The appellant’s blood alcohol level of 157 micrograms was taken some two hours after the accident.  In addition, the blood sample was found to contain traces of tetrahydracannabinol.  The most accurate assessment of the amount of cannabis consumed by the appellant was that he must have smoked at least one cannabis cigarette during the period of approximately four hours prior to the crash.  A blood alcohol sample was taken from Mr Price-McGirr.  On analysis it was found to contain no alcohol. 

[4]        As to the injuries, one of the young men suffered a head injury with loss of consciousness, a fractured left tibia, lacerations to his face and head, bruising and swelling to his jaw and grazes to his lower leg.  He was hospitalised for one day.  The third young man with the least injury receiving lacerations above his left eye and bruises to his left arm and chest.  The appellant was seriously injured sustaining a severe head injury and was hospitalised until 12 October 2001 at which time he was transferred to the Burwood Hospital Brain Injury Rehabilitation Unit for on-going rehabilitation.

Sentencing

[5]        The Judge in sentencing identified the following factors as relevant:

(i)The appellant’s blood alcohol level measured two hours after the accident was 157 milligrams.  The Judge concluded it would have been approximately 190 milligrams at the time of the accident.

(ii)The Judge said the consumption of cannabis would have resulted in “reduced ability to think clearly, longer response reactions, and reduced ability to pay attention”. 

(iii)The speed the appellant attempted to take the corner at was well in excess, somewhere near double the advisory speed sign for the corner.

(iv)The fact that the appellant had a sober driver available to safely drive the car.  The Judge considered that it was a reasonable inference that the appellant impaired by the consumption of alcohol and cannabis insisted on taking over the driving of his own car from the sober driver.

(v)Appellant’s previous convictions.  The Judge recorded the appellant had 10 previous convictions for driving while disqualified along with a conviction for dangerous driving, reckless driving and two convictions for driving with an excess breath alcohol, and four convictions for careless driving.  The appellant had unpaid fines of $23,553 the vast majority of which related to driving offences. 

(vi)The fact that the appellant only had a learner’s licence and was therefore driving contrary to that licence at the time of the accident.

(vii)The vehicle the appellant was driving was in less than warrant of fitness condition.

[6]       The Judge considering relevant Court of Appeal authorities, concluded the proper starting point was 5 years imprisonment, gave credit for the belated guilty pleas and the consequence of the crash for the appellant and reduced the sentence to 3½ years.  The appellant was disqualified for 10 years.

Appellant’s case

[7]       The appellant says the District Court Judge erred in the following aspects:

(i)There was insufficient evidence for the District Court Judge to legitimately conclude there was a lengthy course of bad driving. 

This submission is not justified by the comments of the District Court Judge.  The District Court Judge did not say that this case was characterised by a long period of bad driving.  The Judge proceeded as he had to on the basis that the only evidence of bad driving was the accident itself.

(ii)The appellant alleges that the Judge erred in drawing the inference that the appellant insisted that the deceased allow him to drive and that the deceased was powerless to prevent him from doing so.  The appellant says that no inference of this kind can be drawn.

The pre-sentence report records that the appellant said that he did not know whether the passengers objected to him driving, but if they had he was unlikely to have been influenced by that.  What is clear from the facts is the sober driver was available to safely drive the four young men that night.  The appellant chose to take over the driving from the sober driver.  He did so knowing he had consumed alcohol and cannabis.  This fact is a legitimately aggravating feature in this case.

(iii)The appellant submitted that the Judge’s remarks, that 2 to 3 weeks before his wife was due to give birth the appellant was out on the town, were irrelevant for sentencing purposes.

We agree that this fact is irrelevant to the ultimate sentence.  However, the District Court Judge did not suggest that it was relevant to the length of imprisonment to be imposed.  The remark was made in the context of a letter from the appellant’s wife to the Judge that the appellant was a great father and a devoted husband.  We do not see that this remark by the Judge influenced his sentence.

(iv)The appellant submits that the facts of this case were not the worst of its type and therefore should not attract the maximum starting point.

We make two observations with respect to this.  Firstly, the starting point is only relevant if the ultimate sentence is excessive or inadequate.  Secondly, penalties including starting points, for driving offences involving death must be seen on a continuum from careless driving causing death at one end to manslaughter at the other.  As has been said often by this Court, the essence of sentencing in this area is to identify the elements of aggravation and mitigation and establish where the case falls in terms of relative seriousness.  (See R v Fellowfield [1996] 3 NZLR 657; R v Skerrett CA236/96, 9 December 1986; and recently in the English Court of Appeal R v Cooksley [2003] 3 All ER 40. Significantly worse cases of driving while alcohol impaired are likely to result in manslaughter charges.

Decision

[8]       The relevant aggravating features in this case were accurately identified by the Crown as:

(i)Significant alcohol intoxication combined with cannabis use.

(ii)The appellant had driven the car when a sober driver was available.

(iii)The incident took place at night at speed.  The appellant was on a restricted drivers licence driving contrary to it.

(iv)The appellant entered the corner at a speed well in excess of the safe speed.

(v)The appellant has a bad list of previous convictions for driving offences.

[9]       As a result, a young man died and all others in the car including the appellant were injured.  While this was not the worst case of its type, a final sentence of 3½ years imprisonment was well within the discretionary sentence available to the Judge.  The facts of this case are not dissimilar to R v Pretty (CA 277/00, 26 October 2000).  There the appellant had taken over from a sober driver and had collided with a vehicle in front pushing it into the path of an oncoming vehicle.  The appellant had a blood alcohol level of 147 milligrams.  A sentence of 4 years imprisonment was upheld on appeal on a conviction for manslaughter.  Pretty’s conviction for manslaughter in such similar circumstances reinforces the view that the facts in this case were near the worse case of offending in this category of charge.  And such cases as Fellowfield (supra) and R v Abraham [1993] 10 CRNZ 446 all indicate that a sentence of this level is appropriate.

Disqualification

[10]     We consider the period of disqualification is manifestly excessive.  It has been said many times that long periods of disqualification typically leave little hope for offenders.  On the other hand, it is incumbent on the Courts to keep dangerous drivers such as Mr Hitchens off the road for as long as reasonably possible.  A disqualification of 7 years would amply have met those competing interests. 

[11]     We therefore quash the disqualification of 10 years and substitute one of 7 years.

Solicitors:

Shamy Russ, Christchurch for Apellant

Crown Law Office, Wellington