Lewis v The King

[2023] NZHC 1248

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CRI-2023-418-01

[2023] NZHC 1248

BETWEEN

BRIAN RALPH LEWIS

Appellant

AND

THE KING

Respondent

Hearing:	16 May 2023
Appearances:	A M S Williams for Appellant G E R Alloway for Respondent
Judgment:	25 May 2023
Reissued:	12 July 2023

JUDGMENT OF EATON J

This judgment was delivered by me on 25 May 2023 at 3.30 pm

Registrar/Deputy Registrar Date:

LEWIS v R [2023] NZHC 1248 [25 May 2023]

Introduction

[1]    On 28 February 2023, Brian Ralph Lewis was sentenced by Judge Couch to three years and two months’ imprisonment1 on one charge of driving with excess blood alcohol causing death2 and two charges of driving with excess blood alcohol causing injury.3 Mr Lewis appeals his sentence on the grounds the sentence was manifestly excessive.

Facts

[2]    On the evening of 30 April 2022, Mr Lewis was driving toward Greymouth in a 100 kilometre per hour zone. He drove across the Arnold Valley River Bridge, then lost control of his vehicle and crossed the centre line. He collided with an oncoming vehicle driven by Ms Kathrene Sexton. Two young persons (D and K) were passengers in the vehicle. Ms Sexton was fatally injured and died at the scene. Both young persons were injured, one critically. Mr Lewis was seriously injured.

[3]    A blood specimen was taken from Mr Lewis revealing a blood alcohol level of 183 milligrams of alcohol per 100 millilitres of blood, more than three times the legal limit.

Previous sentence indication

[4]    On 9 November 2022, Judge Couch gave Mr Lewis a sentence indication. The indication was a starting point of three years and six months’ imprisonment with an uplift of 15 per cent to reflect Mr Lewis’s criminal history and a credit of 20 per cent for a guilty plea. An end point of three years and four months’ imprisonment was indicated together with a disqualification from driving. At the sentence indication, Judge Couch stressed that the indication was subject to refinement at sentencing “after more information is available”.4 The Judge also said the indication was subject to reduction to reflect mitigating factors that may emerge at sentencing.

1      R v Lewis [2022] NZDC 3815.

2      Land Transport Act 1998, ss 61(1)(b), 61(3AA) & 61(3A); maximum penalty 10 years’ imprisonment.

3      Sections 61(1)(b) & 61(3A); maximum penalty five years’ imprisonment.

4      R v Lewis CRI-2022-018-000309 at [19].

[5]    The Judge referred in some detail to a victim impact statement from K and to the serious emotional harm caused to many family members as a consequence of the death of Ms Sexton. He recorded that he had not been provided with any details of the injuries suffered by D. The Judge, nevertheless, proceeded on the broad inference those injuries were serious. The Judge observed that the injuries to D were an aspect of the facts that would need to be clarified for sentencing “and may affect the final outcome”.

[6]    Mr Lewis accepted the sentence indication on 21 November 2022 and entered guilty pleas. Sentencing was then deferred for the provision of medical reports as to Mr Lewis’s physical health and for the prison to provide a report as to how Mr Lewis’s medical condition could be managed within the prison.

District Court Decision

[7]    A significant focus of the sentencing was Mr Lewis’s injuries and the management of those injuries within the prison.

[8]    Eight of the victim impact statements were read in court. The Judge observed that “several victim impact statements” had been considered when giving the sentence indication but that “more have been provided”. The Judge described the reading of the victim impact statements in court as “a moving experience” that had brought home “the wide, deep and long-lasting effects of this tragedy”.5 The Judge said it was now clear that the extent of the harm caused by the offending was significantly greater than had been appreciated at the time of the sentence indication. This was described as an aggravating factor for which the Judge provided an uplift of 10 per cent from the indicated starting point of three years and six months’ imprisonment.

[9]    A five per cent reduction was allowed for remorse, including a willingness to participate in a restorative justice conference. A 10 per cent reduction was allowed to reflect Mr Lewis’s health, including the serious injuries he suffered in the fatal collision.

5      R v Lewis, above n 1, at [15].

[10]   The Judge calculated an end sentence of three years and two months’ imprisonment and imposed concurrent sentences on all three charges. Mr Lewis was disqualified from holding or obtaining a driver’s licence for four years.

Principles on appeal

[11]   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 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8

Appellant’s submissions

[12]   Mr Williams, on behalf of Mr Lewis, acknowledged that the sentence indication had been accepted. Nevertheless, Mr Williams submitted that the global starting point might reasonably have been three years’ imprisonment as opposed to three and a half. He acknowledged the high blood alcohol reading and the tragic consequences as aggravating factors.

[13]   In support of his  submission  that  a  lower  starting  point  was  available,  Mr Williams refers to McCullough v Police,9 Hitchens v R,10 McMillan v Police,11 Tugu v Police,12 and Brampton v Police.13

6      Criminal Procedure Act 2011, ss 250(2) and 250(3).

7      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

8      Ripia v R [2011] NZCA 101 at [15].

9      McCullough v Police [2013] NZHC 279.

10     Hitchens v R CA 380/03 25 March 2004.

11     McMillan v Police [2014] NZHC 150.

12     Tugu v Police [2020] NZHC 452.

13     Brampton v Police [2015] NZHC 2618.

[14]   Mr Williams acknowledges that engaging in case comparisons is of limited value. He acknowledges that if the appeal was advanced solely in relation to the argument that three years rather than three years and six months’ imprisonment was the appropriate starting point, the appeal would have little prospect of success. Rather, Mr Williams focuses his argument on the uplift of 10 per cent imposed to reflect the additional victim impact statements available at sentencing.

[15]   Mr Williams says he first learnt of the uplift during the Judge’s sentencing remarks. He submits it was procedurally unfair for the Judge to impose a further uplift beyond what was indicated without providing counsel with the opportunity to address the proposed uplift. Counsel further submits the additional victim impact statements filed after the sentence indication did not warrant an uplift and that the Judge was wrong to find the extent of the harm caused by the offending was significantly greater than had been assessed at the sentence indication hearing. He submits the Judge had already factored the tragic and serious consequences of the offending in fixing a starting point of three years and six months’ imprisonment.

[16]   Mr Williams contends the uplift for previous convictions of 15 per cent was very much at the upper end of the available range, and that the credit of 10 per cent for the very serious injuries suffered by Mr Lewis and the difficulty he would face within a prison was miserly.

[17]   He submits the starting point of three years and 10 months’ imprisonment was too high and that the end sentence of three years and two months’ imprisonment was manifestly excessive.

Respondent’s submissions

[18]   Mr Alloway, on behalf of the Crown, highlighted that in giving a sentence indication the Judge made it clear the sentence was subject to refinement to reflect further information the Judge anticipated receiving at sentencing.

[19]   Mr Alloway referred to R v Gacitua in support of the submission that sentencing in excess blood alcohol cases is highly fact specific.14 With reference to R v Cooksley, he submits the recognised aggravating factors of excess breath alcohol cases as:15

(a)highly culpable standard of driving at time of offence;

(b)driving habitually below standard;

(c)outcome of offence; and

(d)irresponsible behaviour at time of offence.

[20]   Mr Alloway identifies Mr Lewis’s high blood alcohol reading, a shocking criminal history including 11 prior convictions for driving with excess breath or blood alcohol, and the tragic outcome of this offending involving the death of Ms Sexton and serious injuries to two young persons as the relevant aggravating factors.

[21]   In written submissions the Crown referred to several cases, including R v Grace,16 Edmonds v R,17 Walker v R,18 and Te Amo v R.19 Mr Alloway submits that a 10 per cent uplift to reflect the further material, including hearing first hand from the victims, was appropriate and that a global starting point of three years and 10 months’ imprisonment was within range.

[22]   Mr Alloway acknowledges the Judge misapplied Moses, leading to an additional one month’s imprisonment.20

14     R v Gacitua [2013] NZCA 234.

15     R v Cooksley [2003] 3 All ER 40 (Crim App) at [15], cited in Gacitua above n 13, at [25].

16     R v Grace [2020] NZHC 3145.

17     Edmonds v R [2020] NZHC 662.

18     Walker v R [2016] NZHC 1963.

19     Te Amo v R [2010] NZCA 307.

20     Moses v R [2020] NZCA 296; [2020] 3 NZLR 583.

Analysis

[23]   I agree with counsel that there is limited benefit in engaging in a detailed factual comparison with other cases. Notwithstanding, in order to assess whether the starting point adopted by the Judge was within range, I have had regard to the cases referred to by counsel. I have also had regard to Leaupepe v R.21 Those cases point  to a starting point generally in the range of three to three and a half years’ imprisonment in relation to cases involving very similar offending and engaging the same aggravating factors.

[24]   The particular aggravating factors of Mr Lewis’s offending were his elevated blood alcohol level and the outcome of the offending, being the death of Ms Sexton and the injuries suffered by the young person and his close friend.

[25]   I do not consider the starting point indicated of three years and six months’ imprisonment to be outside of the available range. A starting point of three years and 10 months’ imprisonment does err on the high side.

[26]   I agree with Mr Williams that the real issue in this appeal is  the additional  10 per cent uplift imposed at sentencing to reflect the additional victim impact statements.

[27]   At the hearing of the appeal, counsel was unable to identify the additional impact statements that were only available at sentencing. Mr Alloway has since filed a memorandum clarifying the position. The additional victim impact statements were an updated statement from K’s mother – an additional three pages to the original four page statement), a statement from Lucy Hands (daughter-in-law of Ms Sexton), and a statement from D.

[28]At the sentence indication the Judge considered victim impact statements from:

(a)Orlena Whittington (eldest niece of Ms Sexton);

21     Leaupepe v R [2016] NZCA 228.

(b)Emma Hands (daughter of Ms Sexton);

(c)Annaleise Fletcher (granddaughter of Ms Sexton);

(d)Damian Hands (son of Ms Sexton);

(e)David Mollett (partner of Ms Sexton);

(f)Mother of K – four pages);

(g)K;

(h)Father of K; and

(i)Lucy Hands (daughter-in-law of Ms Sexton).

[29]   The updated victim impact statement of K refers to the distress of seeing    Mr Lewis at medical appointments and at a local fish and chip shop. It confirms that K was still not at school fulltime six months after the crash and expressed frustration that his teachers did not know what to do for him or how to teach him. It includes a one-and-a-half-page extract of a report from a specialist rehabilitation service confirming K’s ongoing pain, the profound impact on his learning, the trauma of the injury on his relationships and the significant trauma for the entire family.

[30]   The victim impact statement of Lucy Hands records her distress at having to drive through the scene of the crash, having to deal with the pain suffered by her husband and stepson and how much Ms Sexton is missed by her family.

[31]   D’s statement describes his memories in the aftermath of the accident, his injuries including a broken collarbone, broken wrist, and a concussion. He describes struggling with his mental health and being unable to sleep after the crash. It speaks to his shock at visiting his friend, K, in hospital.

[32]   There can be no doubt that Mr Lewis’s offending has had devastating consequences for many people. A beloved mother, grandmother and partner lost her

life. A young person suffered physical injuries and has had to deal with the trauma of being involved in a horrific and fatal road crash. That young person’s close friend has suffered extremely serious injuries that have had, and will continue to have, a major impact on his life.

[33]   The outcome of the offending, reflected in the victim impact statements, was an important consideration in the sentencing process. Section 8(f) of the Sentencing Act 2002 provides that the Court must consider any information provided to the court concerning the effect of the offending on the victim. Victim impact was expressly identified by the Judge as a significant aggravating factor taken into account at the sentence indication in assessing the appropriate starting point. At that stage, the Judge had several victim impact statements from the partner, children and grandchildren of Ms Sexton. The Judge also had a lengthy statement from K’s parents and a statement from K as regards his injuries and the impact of those injuries for both K and his family. The Judge did expressly record that he had not been provided with any details of the injuries suffered by D. It was that factor, I am satisfied, which led the Judge to comment that “[t]his is an aspect of the facts which will need to be clarified for actual sentencing and may affect the final outcome”.22 It is therefore clear that the Judge considered the very serious consequences of the offending in fixing a starting point of three and a half years’ imprisonment.

[34]   At sentencing the Judge had the three additional victim impact statements and heard directly from a number of the victims who read their statements in court. The reading of those statements moved the Judge, bringing home “to all of us here” the significant consequences of the offending. The Judge found those consequences were “significantly greater” than he had appreciated at the time of the sentence indication.23

[35]   Because the Judge had no information regarding D’s injuries at the time of giving the sentence indication, I agree it was open to the Judge to contemplate imposing an uplift dependent upon information provided regarding those injuries. As it transpired, D’s physical injuries were comparatively modest and would not, in my

22     R v Lewis, above n 4, at [9(b)].

23     R v Lewis, above n 1, at [15].

view, have justified the uplift given that the Judge had inferred, at the sentence indication hearing, those injuries were serious.

[36]As was observed by Chambers J in R v Schofield:24

Every judge on sentencing must be on his or her guard to ensure that the sentencing process is not improperly swayed by sympathy for the victims of crime. The effect of the crime on a victim or victims is always an important aspect of sentencing. But it is only one aspect. The sentencing judge is enjoined by law to consider a range of factors when sentencing.

[37]   The Judge did not articulate, either by reference to any additional material or the statements of the victims who addressed the Court personally, why at sentencing he considered the consequences of the offending to have been so significantly greater than he appreciated at the sentence indication hearing as to justify a 10 per cent uplift in the starting point. Absent an explanation, I consider there to be a risk the Judge allowed himself to be swayed by sympathy for the victims.

[38]   With reference to the approach recently taken to quantifying emotional harm reparation in a WorkSafe sentencing involving a fatality,25 Mr Alloway submitted that with a greater number of victims the Court might be justified in imposing a greater uplift to reflect the outcome of the offending. Mr Alloway was given the opportunity to provide any authorities to support that submission but has been unable to do so. In any event, because the Judge had recognised D as a victim at the sentence indication, Lucy Hands provided the only additional victim impact statement at sentencing.

[39]   To fix a percentage uplift to reflect victim impact was novel. Counsel have been unable to identify a case where that approach has been adopted. I consider that a practice to be discouraged. It runs the risk of victims of offending enquiring as to why, in another similar case, a higher uplift was applied. It also runs the risk that victims might, wrongly, infer that greater uplifts will be applied if victims read their victim impact statements in court. Whilst the reading of victim impact statements at sentencing is now commonplace and to be encouraged, caution must be exercised to

24     R v Schofield HC Auckland S5/01, 10 April 2001, at [8].

25     Ocean Fisheries Ltd v Maritime New Zealand [2021] NZHC 2083, [2021] 3 NZLR 443.

ensure that factor does not lead the Court to impose an uplift for an aggravating factor that has already been factored into the starting point.

[40]   In any case involving a fatality and serious injuries the Court will, with or without victim impact statements, inevitably and appropriately infer serious consequences for victims. The outcome of offending in drink driving causing death or injury cases is a recognised aggravating factor. It was a factor appropriately considered but not quantified by the Judge in fixing a starting point of three years and six months’ imprisonment.

[41]   Finally, I agree with Mr Williams that if a Judge proposes increasing the starting point beyond that indicated and accepted at a sentence indication hearing, natural justice requires the Judge to provide counsel with an opportunity to be heard on the proposed uplift.

[42]I find the Judge was in error to impose an uplift of 10 per cent at sentencing.

[43]No issue was taken with the 20 per cent reduction allowed for guilty pleas.

[44]   Mr Williams describes the uplift for previous convictions as “stern”. I agree. The Judge did not engage in an analysis as to why a 15 per cent uplift was justified. I acknowledge Mr Lewis’s criminal history. The vast majority of those offences were committed many years ago. Mr Lewis’s most recent conviction was in 2016, and prior to that in 1997. The current offending was his third drink driving offence in the past 25 years. His most recent sentence of imprisonment was in 1988. Whilst an uplift was appropriate, having regard to the historical nature of the previous convictions I consider the uplift of 15 per cent to be very much at the upper end of the permissible range.

[45]   The credit of 10 per cent in recognition Mr Lewis’ pre-existing health issues and the serious injuries he suffered in the crash was within range.

[46]   The uplift of 10 per cent applied at sentencing leading to a global starting point of three years and 10 months’ imprisonment was too high. A review of the starting

points adopted in the numerous cases to which I have been referred supports that conclusion. That error has led to an end sentence that is manifestly excessive.

[47]   I fix a starting point of three years and six months’ imprisonment. Offsetting the uplift for previous convictions of 15 per cent against the credits of 20 per cent for guilty plea, 10 per cent for health issues and five per cent for remorse leads to a net reduction of 20 per cent or eight and a half months. Rounded down, that leads to an end sentence of 33 months’ imprisonment.

Result

[48]   The appeal is allowed. The sentence of three years and two months’ imprisonment is quashed and substituted by a sentence of two years and nine months’ imprisonment.

...................................................

Eaton J

Solicitors/Counsel:

A Williams, Barrister, Christchurch

Raymond Donnelly & Co, Crown Solicitor’s Office, Christchurch