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 the victim, a young 20-year-old man, dragging him across Bond Street. The truck and trailer unit continued along Police Street and crossed Crawford Street, the main one- way road north. It collided with four more vehicles before stopping. There, a passing member of the public, who was familiar with heavy vehicles, was able to get into the cab of the truck and apply the handbrake.

[7]    The appellant followed the truck and trailer unit. When he arrived at the scene, he identified himself as the operator of the runaway truck and trailer unit.

[8]    A subsequent examination of the truck showed that the handbrake alarm system was not functioning. The alarm is designed to sound if the driver opens the cab door without applying the handbrake. It is not possible to tell whether the handbrake alarm was functioning at the time of the incident.

[9]    In his interview with the Police, the appellant said that, when releasing the trailer brake, he would automatically put the truck in neutral and apply the handbrake out of habit before leaving the cab. He further stated he was devastated at what had happened as a result.

[10]   On 27 September 2023, the appellant pleaded not guilty to the charge of dangerous driving causing death but changed his plea to guilty on 1 March 2024. He has no previous convictions.

District Court decision

[11]   The Judge acknowledged that the appellant’s actions that day had tragic consequences. He acknowledged the victim’s family, stating that he could not conceive how difficult it would be for a parent to have lost a child in such circumstances. The Judge noted that the victim impact statements given by the victim’s parents were some of the most harrowing statements he had heard. But, although referring to the appellant’s expression of remorse through a letter he had written and his belief he had applied the handbrake before exiting the cab, the Judge

noted that the appellant had accepted the summary of facts on his guilty plea, which stated that the handbrake had not been engaged.3 The Judge went on to say:

[25]      I am obliged to sentence you, hold you accountable for your actions, impose a sentence that denounces your conduct and acts as a deterrent to you and to other people. You have a clean driving record up until now.

[26]      It is sad to see someone of your age and experience in Court but you are in Court because of what you have caused, the death of a young man then aged 20. …

[12]   The Judge then referred to Bassett v Police, where this Court said the following in relation to cases of careless (not dangerous) driving causing death:4

Cases of this nature are some of the most difficult to come before the Courts in terms of the legal and (necessarily) moral judgements that must be made. Often the defendant, as here, is an otherwise responsible citizen, the wrongful act will involve criminal culpability at the lower end of the available spectrum, but the harm is so often tragically catastrophic. It is the marrying of the human propensity to completely avoidable carelessness with the modern automobile that produces the tragedy that must now be confronted — an innocent life lost and equally innocent survivors and severely injured both physically and psychologically.

[13]   The Judge noted that whatever sentence he imposed would likely be seen as “hopelessly inadequate” by the victim’s parents.

[14]   The Judge next said that the appellant’s conduct fell below the standard of care expected, noting he had not applied the handbrake or engaged any other preventative measure, such as turning his wheels towards the curb. Accordingly, and in line with both counsels’ submissions, the Judge adopted a starting point of 18 months’ imprisonment, noting the appellant’s level of culpability for the offending and the tragic consequences that followed.

[15]   Because a guilty plea had not been entered at the earliest opportunity, the Judge assessed a 15 per cent deduction from the starting point was warranted to reflect it.

3      R v Hutton, above n 2, at [23].

4      Bassett v Police [2014] NZHC 2188 at [4]. While this is a case of dangerous driving, the dicta remains applicable.

[16]   The Judge noted the remorse and psychological adversity experienced by the appellant following the incident, including his post-traumatic stress disorder and depressive diagnoses, and he referred to the counselling the appellant had undertaken. He noted the appellant had struggled conceptually with the charge being characterised as dangerous driving because he was not actually driving the truck when the offence occurred, and he had always taken pride in operating as a safe driver. A ten per cent credit was applied for these factors, taking into account the $3,000 reparation payment offered by the appellant, which the Judge said was not offered to compensate or make up for the loss suffered by the victim’s family, but to recognise the harm he had caused. The Judge accepted the reparation payment was a substantial contribution by the appellant.

[17]   The total deductions the Judge allowed amounted to 25 per cent. From the starting point of 18 months, the end sentence was one of 13 and a half months’ imprisonment.

[18]   The Judge then considered the relevant purposes and principles of sentencing. He determined that a sentence of home detention was the least restrictive outcome that would also meet the purposes of denunciation, deterrence and accountability. But, in relation to the appropriate end sentence of home detention, he said:

[51]      It is not a simple mathematical exercise, however, of dividing the end sentence of a short term of imprisonment by two. I have to step back and determine what is an appropriate sentence of home detention.

[52]      In my view a sentence of nine months’ home detention is appropriate to be imposed upon you today. …

[19]   The Judge also imposed a driving disqualification of 18 months, seemingly at then appellant counsel’s behest.

Basis for the appeal

[20]   Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence will be successful only if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be

imposed.5 A court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.6 When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.7

[21]   There is no challenge to the 18 months starting point adopted by the Judge however Mr Fletcher, on behalf of the appellant, submitted that both the sentence of home detention and the period of disqualification imposed were manifestly excessive. I address each issue in turn.

Was the sentence of home detention manifestly excessive?

[22]   The focus is on the deductions the Judge allowed for the guilty plea and other mitigating factors and the end sentence of home detention imposed, with Mr Fletcher submitting that the Judge’s approach effectively made no provision for any mitigation.

Was the deduction for the guilty plea sufficient?

[23]   The law is clear that a deduction for a guilty plea should not exceed 25 per cent.8 A guilty plea discount is justified in substantial part by systemic and social considerations and is distinct from a defendant’s personal circumstances. Mr Fletcher submitted that the appellant should have received a deduction of 20 per cent, rather than the 15 per cent the Judge adopted. Mr Smith, for the Crown, submitted that anything more than the 15 per cent adopted by the Judge would not recognise that the guilty plea was only entered some six months after the charge had been laid and following an earlier not guilty plea. He submitted the delay in entering a guilty plea was due to the strategic approach taken by then counsel for the appellant, based on the appellant’s instructions.

5      Criminal Procedure Act 2011, s 250(2) and (3).

6      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; Ripia v R [2011] NZCA 101 at [15].

7      Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].

8      Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [75].

[24]   I accept that the appellant’s mental state following the incident was such that it would have contributed to the timeliness of the guilty plea but, as against that, the charge was not laid until five months after the incident. This delay was necessary for investigative purposes. But, as Mr Smith noted, there was clear evidence right from the outset that the handbrake had not been applied by the appellant because of the actions of the third party referred to in [6] above. This means that the appellant’s culpability for his offending, regardless of whether the alarm was operating or not, centred on his failure to apply the handbrake and likely turn the wheels towards the curb.

[25]   After the charge was laid, there was a period where counsel for the appellant attempted to have the charge reduced to one of careless use causing death. As Mr Fletcher rightly submitted, this is a legitimate approach to take on behalf of a defendant client, and it was based on the difficulty the appellant was experiencing accepting that he had failed to apply the handbrake. While I accept that the appellant’s actions were not a delaying tactic, as he had always accepted the accident was his fault, an application was made, under s 147 of the Criminal Procedure Act, for the charge to be dismissed on the basis that the driving concerned was careless and not dangerous.9

[26]   I place limited weight on Mr Fletcher’s reference to cases of careless driving. There was clearly some discussion before the appellant’s guilty plea as to what the appropriate charge might be. The fact is the appellant pleaded guilty to a charge of dangerous driving. I am also of the view that the offending squarely falls within the parameters set out by Gendall J in Cao v Police in that the appellant fell below the standard of care expected of a reasonable driver in the circumstances and the resulting situation was objectively dangerous.10

[27]   Sentencing in cases of dangerous driving causing death is “highly fact- specific”,11 meaning case comparison can be of limited value. My own review of cases charged under s 36AA(1)(b) of the Land Transport Act 199812 and of the Court

9      This application is first referred to on the Court file on 3 November 2023. It appears to have been abandoned when the guilty plea was entered on 1 March 2024.

10     Cao v Police [2015] NZHC 1793 at [23].

11     Gacitua v R [2013] NZCA 234, at [22].

12     Ko v Police [2012] NZHC 3312; R v Munokoa HC Auckland, CRI-2011-092-10497, 19 March 2013; Hati v R [2017] NZHC 687.

of Appeal’s decision in Gacitua v R13 suggests the starting point was appropriate and certainly within range. And, while referring to it, Mr Fletcher did not seek to disturb the starting point adopted by the Judge.

[28]   The beginning and end of the handbrake matter is that the appellant agreed in the summary of facts to having not applied it and the failure to do so resulted in a death and significant property damage. While acknowledging the difficulty the appellant was having coming to grips with the nature of the charge, I agree with Mr Smith that, given the type of vehicle, the time of day and the fact that, because of the independent evidence, it could be substantiated that the handbrake had not been applied from the outset, a charge of dangerous driving causing death was justified.

[29]   I agree with Mr Smith that, given the timing of the plea, a discount of 15 per cent was justified.

Was the deduction made for other mitigating matters inadequate?

[30]   Mr Fletcher submitted that a 15 per cent deduction for other personal mitigating factors ought to have been adopted by the Judge rather than a 10 per cent deduction. Mr Smith accepted that, while this credit was at the lower end of the available range, it was not outside it.

[31]   Mr Fletcher advised that the appellant is still receiving counselling and emphasised the appellant’s clinical diagnoses. Mr Fletcher described the incident as shattering the appellant’s life. He queried what else he could now do to express his remorse to the victim’s family.

[32]   Although I accept all of these matters, the appellant’s mental health has not contributed to the offending in the sense of it being causative, rather, these difficulties have arisen because of the offending. His payment of $3000 to the victim’s parents (which has been passed on to fund a friend’s medical studies) was significant and should be recognised on the facts of this case and the appellant’s circumstances.

13     Gacitua v R, above n 11, at [27].

[33]   Although 15 per cent might have been adopted by the Judge, the allowance he adopted was within the available range. For this reason, I am not justified on appeal in interfering with it.

Was the imposition of nine months’ home detention appropriate?

[34]   The short point made by Mr Fletcher is that the deductions applied by the Judge, totalling 25 per cent, have not made any difference to the end sentence.

[35]   I am not able to accept Mr Fletcher’s submission because of the matters the Judge referred to in [49]−[53] of his decision.14 The Judge did take into account the relevant purposes and principles of sentencing and it is easy to infer this is the reason he decided that nine months’ home detention would, overall, best meet the interests of justice.

[36]   It was within the Judge’s discretion to decide not to halve the sentence for the purposes of home detention. Halving is not automatic—this is particularly so when a shorter home detention period is envisaged.15 An end sentence of around seven months’ home detention would have resulted had the Judge halved the end term of imprisonment, but the length of the sentence imposed must also reflect the fact that a young man died. Although I accept deterrence for this appellant is not a key factor, the need for the sentence imposed to meet the purposes of denunciation, general deterrence and accountability certainly were. The fact an end sentence of home detention was imposed rather than imprisonment takes into account the least restrictive outcome principle.

[37]   I am not persuaded the Judge erred in law by deciding to impose nine months’ home detention instead of a lesser period. Like the Judge, I consider the overall interests of justice required this outcome.

14     R v Hutton, above n 2.

15     R v Timai HC Auckland CRI-2006-092-2907, 2 May 2008 at [19].

Conclusion

[38]   It follows that I am not persuaded the end sentence of home detention was manifestly excessive.

Was the period of disqualification manifestly excessive?

[39]   The minimum disqualification that could have been imposed was one of 12 months. Although the Crown at sentencing submitted a 12-month disqualification was satisfactory, the Judge imposed an 18-month disqualification, in line with then counsel for the defendant’s submissions.

[40]   As raised by Mr Fletcher, disqualification is primarily concerned with ensuring public safety.16 It is unclear why 18 months was imposed as opposed to the statutory minimum. Apart from the handbrake and steering errors, by now quite appropriately recognised, there is no readily apparent error in the appellant’s driving that suggests any future danger to the public. On the contrary, his record until this incident has been impeccable and his behaviour leading up to the event (such as taking rest breaks per the summary of facts) suggest he was typically a responsible driver.

[41]   Disqualifications can and have been lengthy under cases similarly charged, but usually where there are other factors, such as severe intoxication, speed or inexperience, which necessitate public safety coming to the fore.17

[42]   The real issue is that, if the appellant is disqualified for over 12 months, he will be required to reapply for his heavy vehicle licence. Because of the appellant’s age, and the time it would take him to re-sit his licence, Mr Fletcher submitted an 18-month disqualification is disproportionate.

[43]   The appellant’s case is somewhat analogous to R v Munokoa where the conduct in question was quite removed from driving in the normal sense. The appellant was a young man who, while attempting to flee a fight at a property, hit an older man with

16     Leaupepe v Police [2015] NZHC 1766, at [8].

17     Cao v Police, above n 10; R v Bahadori-Esfahani [2019] NZHC 1532; R v Fleming [2022] NZHC 1517.

his car by attempting to turn it in a confined space, causing the man to die of his injuries in hospital the next day.18 While these circumstances are very different, in both instances the offences can properly be considered one-off events unlikely to be repeated, with the sentencing more concerned with the death that occurred as opposed to the need to protect the public from a dangerous driver. A 12-month disqualification was imposed in that case, with the Judge querying whether disqualification was necessary at all.19

[44]   I do not agree with Mr Smith that, in the absence of supporting material, I cannot address this factor on appeal. While supporting material, such as the licences the appellant will be required to re-sit, would be of assistance, it is not crucial. It is notable that disqualification over 12 months will require the appellant to re-sit all his licences which, as Mr Fletcher submitted, will be a difficult consequence to deal with for someone of the appellant’s age and means.20

[45]   The conduct sentenced, like in Munokoa, comprised a one-off, albeit serious, error of judgment.21 In my view, it has been recognised adequately by the sentence of home detention the Judge imposed.

[46]   When considered as part of the sentencing package, I am persuaded that the 18 months’ disqualification was manifestly excessive.

Result

[47]    The appeal is dismissed in relation to the sentence of nine months’ home detention.

[48]   The appeal is allowed in relation to the 18 months’ disqualification. The period of 18 months’ disqualification is set aside, and, in its place, I impose a period of 12 months’ disqualification.

18     R v Munokoa, above n 12.

19     R v Munokoa, above n 12, at [37].

20     Land Transport Act, s 83(1)(a).

21     R v Munokoa, above n 12, at [21].

[49]   I have been advised by the Victims Advisor that a representative of the media sought to contact the victim’s family directly about this appeal after the hearing before me. The victim’s family are concerned that this decision will be released and reported upon and will be available on social media before they are contacted by the Court Services for Victims. An embargo on the release of the judgment for publication has been requested to enable the Court Victim Advisor to update the family when the decision is released. This request is completely understandable and appropriate.

[50]   Because of the time of year, I place an embargo on the release of this judgment for publication until 5.00 pm on Friday 20 December 2024. I authorise that a copy of the judgment can be released to the victim’s family prior to general publication.

[51]   To be clear, upon release, a copy of the judgment can be made available to counsel for the parties and to the victim’s family. Publication of the content and result of the judgment is embargoed until 5.00 pm on Friday 20 December 2024.

Harland J

Solicitors:

Grant Fletcher, Barrister, Christchurch RPB Law, Dunedin.