Hutton v The King - [2024] NZHC 3910

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2024-412-38

[2024] NZHC 3910

BETWEEN
ROBERT GERWYN HUTTON

Appellant

AND

THE KING

Respondent

Hearing: 16 December 2024

Appearances:

G D Fletcher for the Appellant R D Smith for the Crown

Judgment:

18 December 2024

JUDGMENT OF HARLAND J

Introduction

[1] In July 2024, the appellant was convicted of dangerous driving causing death.1 He was sentenced to nine months’ home detention and 18 months’ disqualification from driving by Judge Large in the District Court.2 He appeals the length of both sentences.

[2] Mr Fletcher submitted, on behalf of the appellant, that the Judge erred when imposing sentence in the following respects:

1 Land Transport Act 1998, s 36AA(1)(b); maximum penalty ten years’ imprisonment, mandatory disqualification from driving for at least one year.
2 R v Hutton [2024] NZDC 15546.

HUTTON v R [2024] NZHC 3910 [18 December 2024]

(a) applying inadequate deductions for the appellant’s guilty plea and other mitigating circumstances (prior good character, insight, remorse and reparation);

(b) failing to impose a term of home detention that correctly reflected the deductions for mitigating matters, either as the Judge had assessed them to be or as the appellant submits they ought to have been; and

(c) imposing a period of disqualification that is disproportionate in all the circumstances.

[3] I have decided to allow the appeal in part by reducing the period of disqualification. This judgment sets out my reasons for doing so.

The offending

[4] The offending occurred on Friday 17 March 2023. The appellant, then aged 65, worked with a heavy vehicle towing and recovery company. He operated a truck with a gross vehicle mass (GVM) (maximum allowable weight for the vehicle when fully loaded) of 26,000 kg and two semi-trailers with a GVM of 35,000 kg, each approximately 20 m in length. The truck and trailer unit together were commonly referred to as a “B-Train”.

[5] On the morning of a work trip to Dunedin, at about 7.00 am, the appellant unloaded the truck with the assistance of a forklift operator from a local parts shop on Carroll Street. The truck and trailers were facing downhill in an easterly direction towards Princess Street. Once unloaded, the appellant attempted to drive the truck and trailer unit away, but it shuddered and would not move. He realised that the brake on the rear trailer was still engaged and could not be remotely released from the cab. The appellant put the truck gear lever to neutral and left the cab to release the trailer brake. He did not engage the handbrake. Once he released the rear trailer brake, the truck and trailer unit began to move, driverless, down Carroll Street.

[6] The appellant tried without success to hold back the vehicle and get to the cab. The truck and trailer unit passed over Princess Street and onto Police Street, where it struck a parked Subaru and collided with a building. Tragically, it fatally struck…

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.

Continue reading Hutton v The King

Details

AGLC: Hutton v The King [2024] NZHC 3910
Case: [2024] NZHC 3910
Decision Date: 18 December 2024

CaseChat Overview and Summary

Robert Gerwyn Hutton appeals the length of his sentence for dangerous driving causing death, which the District Court sentenced him to nine months’ home detention and 18 months’ disqualification from driving. Hutton submits the Judge erred by applying inadequate deductions for his guilty plea and other mitigating circumstances, failing to impose a term of home detention that correctly reflected the deductions for mitigating matters, and imposing a period of disqualification that is disproportionate in all the circumstances. The Court found that the deductions made by the Judge for Hutton's guilty plea and other mitigating factors were within the available range, and the imposition of nine months’ home detention was appropriate. However, the Court found the 18-month period of disqualification was manifestly excessive, reducing it to 12 months. The appeal is dismissed in relation to the sentence of home detention, but allowed in relation to the disqualification. An embargo on the release of the judgment for publication was placed to enable the Court Victim Advisor to update the victim’s family when the decision is released.

Orders