Hodgins v Police - [2018] NZHC 1644

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE

CRI-2018-419-000021 [2018] NZHC 1644

BETWEEN
MICHAEL ALLEN HODGINS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 July 2018

Appearances:

S Khan for the Appellant

M Dillon for the Respondent

Judgment:

5 July 2018

ORAL JUDGMENT OF POWELL J

[Appeal against Sentence]

Solicitors:
Almao Douch, Hamilton Fortune Manning, Auckland

Counsel: M Dillon S Khan

HODGINS v NEW ZEALAND POLICE [2018] NZHC 1644 [5 July 2018]

Introduction

[1] Michael Hodgins is a truck driver. On 5 April 2017 he was driving, as he regularly did, between Auckland and Hamilton. He approached the roundabout on Te Rapa Road. As he turned left onto Sunshine Avenue, he did not look left to see if there was anyone in the adjacent cycle lane. His truck struck and killed a cyclist, Graeme Leach.

[2] Mr Hodgins pleaded guilty to careless use causing death,1 and on 19 April 2018 was sentenced to three months’ community detention, 180 hours community work,
$10,000 in reparations for emotional harm, and he was disqualified from driving for 12 months.2

[3] He now appeals on the basis that the sentencing Judge, Judge Burnett, wrongly assessed his level of carelessness as high, and that as a result of that and also not taking account of other decisions reflecting similar circumstances, the sentence imposed was manifestly excessive.

Background

[4] As noted Mr Hodgins is a truck driver who regularly operates between Auckland and Hamilton. On the day in question he was driving a truck of 20 m in length including its trailer. He was in the left-hand vehicle lane approaching the roundabout. To the left of this lane is a clearly marked cycle lane which at the time extended up to the roundabout. The statement of facts to which Mr Hodgins pleaded guilty indicated that he had seen Mr Leach cycling down Te Rapa Road, he has however subsequently disputed this. What is clear is that he should have seen Mr Leach who was dressed in a hi-visibility vest and had a red helmet, and was clearly visible in what were perfect driving conditions.

[5] As he came up behind Mr Leach, Mr Hodgins started to pass the cyclist. Mr Leach dropped back towards the middle of Mr Hodgins truck but as Mr Hodgins

1 Land Transport Act 1998, s 38. The maximum penalty is a term of imprisonment of three months, or a fine not exceeding $4,500. The Court must order the person to be disqualified from holding or obtaining a driver licence for six months or more.
2 Police v Hodgins [2018] NZDC 7688.

began to slow for the roundabout, Mr Leach began gaining again and they in fact arrived at the roundabout together, Mr Leach coming to a stop slightly to the front left- hand side of Mr Hodgins truck. Mr Hodgins was indicating the he was turning left, and was looking right to check there was no oncoming traffic already on the roundabout.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 1644
Decision Date: 5 July 2018

CaseChat Overview and Summary

Michael Hodgins, a truck driver, appeals against his sentence for careless use causing death following an incident where he struck and killed a cyclist, Graeme Leach, while turning left onto Sunshine Avenue. Hodgins pleaded guilty to the charge and was sentenced by Judge Burnett to three months’ community detention, 180 hours of community work, $10,000 in reparations, and a 12-month disqualification from driving. The appeal hinges on two main arguments: first, that Judge Burnett wrongly assessed his level of carelessness as high; and second, that the sentence was manifestly excessive when compared to similar cases. The court must decide whether the sentence imposed was erroneous and if it was manifestly excessive.

The court found that Judge Burnett was correct in assessing Hodgins' level of carelessness as high, noting that the CCTV footage demonstrated a sequence of failures leading to the collision, rather than momentary inattention. The court rejected the argument that the cycle lane's improper layout should mitigate Hodgins' carelessness, emphasizing that as a professional driver, Hodgins was required to deal with the lane as it existed. Regarding the comparison with other cases, the court concluded that while some cases involved lower levels of carelessness, others did not adequately consider the need to deter such behaviour or protect vulnerable road users. The court held that the sentence imposed was within the permissible range and appropriate given Hodgins' culpability, noting that community detention, combined with community work and reparations, effectively communicated the seriousness of the offence to the community.

The appeal was dismissed, and the original sentence was upheld.

Orders