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…

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 Ko v Police

Details

AGLC: Ko v Police [2012] NZHC 3312
Case: [2012] NZHC 3312
Decision Date: 20 December 2012

CaseChat Overview and Summary

The appeal in Ko v Police was brought by the appellant, Mr Ko, who sought to overturn a sentence of one year and nine months imprisonment, which had been imposed by the District Court for his dangerous driving that resulted in the death of one person and injuries to four others. The appeal was heard by Panckhurst J in the High Court of New Zealand, Dunedin Registry. The legal issues before the court were whether the starting point for sentencing was excessive and whether the District Court Judge was wrong in rejecting home detention as the least restrictive sentencing option.

In assessing the first issue, the court found that while there was no fixed tariff for dangerous driving causing death and injury, the starting point of three years imprisonment was within the available range. However, the court was concerned that the Judge had referred to an English decision, R v Cooksley, which suggested a presumption in favour of a sentence of imprisonment in cases of dangerous driving causing death. The court found that this was contrary to the approach in New Zealand, where there is no presumption for or against home detention. Regarding the second issue, the court found that the exercise of discretion to reject home detention as a sentencing option was flawed, as it had not properly considered the principles set out in Vhavha. The court concluded that the appellant's culpability, while serious, did not warrant the full extent of a prison sentence, and that home detention would be a more appropriate outcome.

The court substituted the sentence of imprisonment with a sentence of nine months home detention, along with 200 hours of community work. The court also noted that a suitable residence for home detention had become available after the District Court's sentencing decision. The court upheld the reparation and disqualification from driving components of the original sentence.

Orders