Ko v Police

[2012] NZHC 3312

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2012-412-62 [2012] NZHC 3312

KOK WEI KO

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 December 2012

Counsel:         S Saunderson-Warner for Appellant

R Smith for Respondent

Judgment:      20 December 2012

JUDGMENT OF PANCKHURST J

[1]      This is an appeal against an effective sentence of one year and nine months imprisonment imposed on Mr Ko, a Singaporean national.   He appeared in the District Court for sentence on 5 December in relation to a charge of dangerous driving causing death and four charges of dangerous driving causing injury.  Those offences were committed on 13 November, approximately three weeks before the sentencing took place.

[2]      Nine days earlier the appellant had arrived in New Zealand with friends for a holiday visit.   They travelled in a rental vehicle, a Toyota Rav.   On Tuesday 13

November, they were driving on State Highway One from Balclutha to Clinton. This is an undulating piece of road and at the time they were in 100 km per hour zone.

On a rise, and while stationed behind a truck, the appellant pulled out, crossed

KO V NEW ZEALAND POLICE HC DUN CRI 2012-412-62 [20 December 2012]

double yellow lines in an endeavour to pass the truck.  At the same time, Michelle Squires was coming in the opposite direction driving a Mercedes Benz car.   The appellant found himself about half way through the passing manoeuvre when he was confronted by the oncoming vehicle.  He endeavoured to avoid the car by driving to the right hand side, but it was not possible to do so, and a head-on collision occurred. Ms Squires’ father, Neville, a front seat passenger, bore the brunt of the impact.  He died at the scene as a result of an internal cardiac rupture.   His daughter suffered fractured ribs, a punctured lung, a fractured leg and a significant wrist injury.

[3]      The three passengers in the appellant’s car were also seriously injured.  The front seat passenger, a male, sustained a fracture to his lower spine and a fractured foot.   The two  females  in  the rear of the vehicle sustained a laceration  of the pancreas in one case, and in the other a fractured hip and significant leg injuries. The four survivors were airlifted to Dunedin hospital for treatment.  When spoken to by the Police, the appellant said that he had been following a truck, that he had 40 metres of clear visibility and was half way through the overtaking manoeuvre when he saw the car.  He accepted that he was aware of the presence of the yellow lines and knew that they were non passing lines.   He commented that it was not a safe place to overtake.

[4]      Mr Ko is 26 years of age.  He has no previous convictions.  He has as well an impressive background.  He is a mechanical engineer with a university qualification. The Judge was shown letters from a university services welfare club, which confirmed that Mr Ko had been an active provider of welfare to others during his university days. A further letter was from his employer, speaking well of him in that context and indicating that his job would remain available to him.  There were letters as well from his friends, the victims who were injured in his vehicle, supportive of him and endorsing his good character.  His family showed concern, travelled to New Zealand and supported him in the aftermath of this tragedy.

[5]      Mr Squires was aged 82.  He was on his daughter’s account an active man, particularly  for  his  age.    He  enjoyed  life  and  she  enjoyed  and,  it  seems,  also depended upon him.   She is aged 56, presently living alone and obviously much affected by both her injuries and the psychological impact of the loss of her father

and her involvement in this accident.  She and her father were very close and had daily contact.  She has a number of worries, including financial problems as a result of an anticipated significant period of recuperation.   The victim impact statement ends on this note:

I do not want to see Mr Ko.  I do not know if I can ever forgive him, but I

do feel for him because he will have this event with him for life.

[6]      This I think was a perceptive report.   It is consistent with the sentencing report provided to the District Court and all of the other materials which are on file. These indicate that  the  appellant  has,  and  will  continue to  bear,  a considerable burden as a result of his actions.  In short, he has demonstrated real and considerable remorse for his actions.

[7]      In sentencing the appellant, the Judge of course evaluated the seriousness or culpability of the offending.  He accepted that there was no hint of persistent driving misconduct, but rather a one off piece of driving that brought about tragic results. He termed the culpability ‘high’ on account of the overtaking on double yellow lines, a degree of impatience in relation to the truck and that this was a tragedy which could have been so easily avoided by simply complying with the road rules.

[8]      Counsel in the District Court, not Ms Sanderson-Warner, characterised the case as one involving a “gross error of judgment”.   The Judge recorded that submission which, it seems to me, captures the essence of the appellant's culpability. In particular, whilst this was plainly dangerous driving, it is a case which is devoid of the aggravating features that so often accompany an offence of this kind.

[9]      In arriving at the appropriate starting point for sentencing the Judge referred to the need to hold the appellant accountable, to denounce his conduct and the need for deterrence,  not  so much specific deterrence,  but  as  he described  it  ‘general deterrence’.  I take that to mean that the Judge doubted Mr Ko’s need for deterrence, but saw it as a case requiring deterrence of others.  He also reminded himself of the need to impose the less restrictive sentencing outcome that was appropriate, the need for consistency, and also the need to have regard to the maximum penalty for the

offence – 10 years imprisonment.  The Judge correctly noted that the maximum had been doubled recently, in May 2011.

[10]     He also made reference to an English decision, called Cooksley[1], decided by the Court of Appeal in 2003.   The Judge noted that it was a decision frequently applied in New Zealand and that it was authority for the principle that “normally only a custodial sentence would be imposed no matter what the mitigating factors were when death was caused by dangerous driving”.  I shall need to return to that observation shortly, as to my mind it was significant in relation to the ultimate sentencing outcome.

[1] R v Cooksley [2003] 3 All ER 40

[11]     Following these various remarks the Judge arrived at a starting point of three years imprisonment.   He then allowed a 20% deduction, or seven months, in recognition of the absence of previous convictions, the extent of the appellant’s remorse and the offer to pay reparation to Ms Squires.   The Judge then made a further 25%, or 8 month, reduction in recognition of a guilty plea entered at the first possible opportunity.   Thereby he arrived at an end sentence of 21 months imprisonment.  This being a short term of imprisonment the Judge noted that he was required to consider whether or not to convert the sentence to home detention.  There was  no  suitable  address,  or  indeed  home  detention  appendix  available  to  him, because at that point there was no residence which could be used for that purpose. The Judge, however, continued on to say this:

[I]n any event my view is that a sentence of home detention would not achieve the purposes and principles of sentencing.   A sentence of home detention would not be appropriate, because it would not denounce your offending and hold you accountable.   Home detention would not be appropriate because of the seriousness of the offending, the consequences of the offending and the fact there has been a death and four significant injuries. For those reasons, I would not even be prepared to convert the sentence under s 80i of the Sentencing Act to allow you to apply for home detention.

[12]     The sentence was then pronounced being a term of one year and nine months imprisonment, with reparation of $18,000 to be paid to Ms Squires on account of

emotional harm and a period of two and a half years disqualification from driving.  I

note that the $18,000 was raised by Mr Ko from his savings and with the assistance of his family.

[13]     Ms Sanderson-Warner in advancing the appeal, raised two grounds.  The first was that the starting point adopted by the Judge was excessive.  She rightly noted that there is no fixed tariff for dangerous driving causing death, and injury, because the circumstances of cases vary to such a major degree.  Some years ago, in the case of Skerrett[2], the New Zealand Court of Appeal listed aggravating and mitigating factors and these are frequently used as a checklist in judging the relative culpability of offending of this kind.   Counsel said that this was a case of dangerous driving pure  and  simple,  but  that  it  lacked  the  aggravating  features  which  so  often

accompany this offending.  I agree with that submission.

[2] R v Skerrett CA 236/86, 9 December 1986

[14]     Reference was also made to a number of similar cases including that of Haskell[3], an appeal decision in this Court decided in February this year.  The case, it seems to me, has some parallels, although it was a charge of aggravated careless driving causing death and injury.  It involved the driver of a logging truck, who on a forest road, drove around a bend on the incorrect side of the road, causing an impact with a small truck coming in the opposite direction.  The end result was the death of a passenger and significant injuries caused to the driver of the other vehicle.  In that case, from a starting point of 18 months imprisonment, a sentence of 9 months

imprisonment was imposed in the District Court, but on appeal Justice Lang substituted a sentence of home detention, coupled with community work.

[3] Haskell v Police [2012] NZHC 118

[15]     Finally  in  this  context,  Ms Sanderson-Warner  submitted  that  if,  as  was contended on behalf of the Crown, the range for dangerous driving causing death was 18 months to 3 years imprisonment, this was a case which should not have been placed at the top end of that range.   Hence, the submission continued, a proper starting  point  would  have  been  18  months  imprisonment  which,  with  a  45% reduction, would have suggested an end sentence of 10 months.

[16]     The second ground of appeal was that the Judge was wrong to reject home detention as the least restrictive and available sentencing option.   Reference was particularly made to the dissenting judgment of the then President of the Court of the Appeal, Justice William Young, in Vhavha[4].   The President characterised the discretion to impose home detention as commuting what would otherwise be a short term sentence of imprisonment to a community based sentence.  Secondly, he said

that there is no presumption in New Zealand for or against the imposition of home detention.  Instead, Judges are required to exercise a discretion in deciding whether in any given case a short term sentence of imprisonment should be commuted to one of home detention.  That is to be done having regard to the purposes and principles of sentencing set out in Sections 7 and 8 of the Sentencing Act.

[4] R v Vhavha [2009] NZCA 588

[17]     I note that this was a dissenting judgment, at least in relation to the outcome of the appeal.    But,  the approach  advocated  and  the discussion  of the relevant principles is not in dispute and indeed has been approved in subsequent decisions of the Court of Appeal. The argument on behalf of the appellant continued that this was a case where the exercise of discretion had miscarried, because there was an undue focus upon the consequences of this gross error of judgment.  Reference was made to

the Court of Appeal decision in Fallowfield[5], where the Court stressed the need to

have first regard to the driving conduct, recognising that the outcome could often be haphazard in that seriously bad driving may not cause injury, much less death; whereas less culpable driving could have far more drastic consequences.   On this basis, I was urged to the view that this was a case where home detention should be seen as the least restrictive and appropriate outcome.

[5] R v Fallowfield [1996] 3 NZLR 657

[18]     Mr Smith, in an equally thoughtful submission, responded to these grounds of appeal.  Firstly, he submitted that the starting point of three years imprisonment was within the available range.   In particular, he referred to a passage from Hall on Sentencing which noted that the trend of the cases in this country was to use a starting point of 18 months to 3 years imprisonment in cases without significant

aggravating factors and that this trend existed prior to the doubling of the sentence maximum.  Hence, it was submitted, the present sentence was well within range.

[19]     In relation to home detention, Mr Smith rightly said that there was no dispute in  relation  to  the  principles  discussed  by  the  President  in  Vhavha  but  the  fact remained  that  the decision  whether to  commute a short  term  sentence to  home detention plainly involved an exercise of a discretion.   It followed that this Court should only intervene if the Judge below had not taken account of all relevant factors, or had brought to account irrelevant matters, or was otherwise in error in relation to his approach.  Counsel also referred to a number of recent decisions, one in the Court of Appeal and one in this Court, where Judges had recognised the extent to which the District Court must make the anxious decision whether to commute a short term sentence to home detention, and noted the respect that should be accorded that decision unless it fell foul of the principles that I referred to a moment ago.  In short, said Mr Smith, this was an exercise of discretion which was not flawed for failure to look at relevant aspects, nor in terms of the approach adopted by the learned Judge.

[20]     I am not persuaded that the starting point adopted in this case was beyond the available range.  I have, I think, made it clear that I think that this was a case of a gross error of judgment plainly amounting to dangerous driving.  The fact that the case does not have the aggravating features that attend so many examples of dangerous driving may well suggest that many Judges would not have gone towards the top of the range, but regard must be had, as the Judge did, to the circumstance that the maximum has been doubled since that trend was identified.  In any event, the Judge  made  significant  deductions  totalling  45%  which  reduced  the  effective sentence to the category of a short term sentence.

[21]     He also rightly recognised the obligation that rested upon him to consider the question of home detention.  With reference to that, the situation has changed in that there is now a report confirming the availability of a suitable residence.   Ms Sanderson-Warner has explained the background to me. A family from New Zealand which had experienced particular kindness in Singapore, read of this case.

[22]     They made contact with Mr Ko’s family and in due course volunteered their home as available for a sentence of home detention.   It is assessed as being appropriate for that purpose.

[23]     Was there any error of judgment in rejecting home detention in this case?  I have found this an anxious question, because without doubt the sentencing remarks were full and comprehensive.

[24]     There is only one aspect which has caused me to pause, and it is the reference to the Cooksley case.  It is not really apparent why it was referred to in paragraph 25 to the extent that it was, although it was brought to my attention that the informant’s submissions relied on the case as authority for the proposition that deterrence demanded a sentence of imprisonment.   It has caused me to pause because the principle discussed in that decision suggests the existence of a presumption in favour of  a  sentence  of  imprisonment  in  cases  of  dangerous  driving  causing  death. Although the Judge did not refer to the case again later in his remarks concerning home detention, I am concerned that he referred to it earlier and there must have been a purpose in his doing so.  I am left with the concern that the reference runs contrary to what was said by President Young in Vhavha.  There is no presumption for or against home detention in New Zealand.  What is called for is an exercise of discretion by reference to the sentencing purposes and principles spelt out in the Act.

[25]     I am of the view that it is necessary to review the exercise of discretion in this case and for this Court to intervene for the reasons that I just endeavoured to explain. In my view this was dangerous driving, not of the worst kind in terms of culpability, although plainly of a very serious kind in terms of outcome.   Having regard to Fallowfield, it is necessary in weighing the end sentence to have most regard to the driving culpability.  Doing that, and having regard, as the Judge undoubtedly did, to the appellant’s character and circumstances, I am of the view that this is a case where it is appropriate to commute a short term imprisonment to one of home detention.

[26]     I regard a sentence of nine months home detention as appropriate.   That sentence is substituted upon the conditions, three in number, contained in the Department of Corrections report.   I am also troubled as to what Mr Ko will do

during the course of a sentence to be served in New Zealand.   In my view it is entirely appropriate that he is also required to undertake community work  during the sentence.  He is a man of ability.  He has demonstrated real remorse.  He must, one would hope, be able to undertake community service of value to the community and thereby pay more of the debt that he owes on account of his actions.

[27]     He is therefore sentenced to 200 hours of community work.  In other respects, the sentence imposed in the District Court in relation to reparation and disqualification shall stand.

Solicitors:

S Saunderson-Warner, Dunedin

Wilkinson Adams, Dunedin