Macswain v The Queen

[2005] NZCA 124

IN THE COURT OF APPEAL OF NEW ZEALAND

CA37/05

THE QUEEN

v

IVAN CHRISTOPHER MACSWAIN

Hearing:24 May 2005

Court:Robertson, Williams and Salmon JJ

Counsel:K Ryan QC for Appellant

M F Laracy for Crown

Judgment:26 May 2005 

JUDGMENT OF THE COURT

Appeal against judgment is dismissed.

REASONS

(Given by Robertson J)

Introduction

[1]       This is an appeal against a sentence of three and a half years’ imprisonment imposed on the appellant in the High Court at Auckland on 6 December 2004 by Winkelmann J after Mr  Macswain pleaded guilty to causing the death of Leanne Meadly by an unlawful act, namely dangerous driving thereby committing manslaughter.

[2]       At the same time he was sentenced to a concurrent term of 12 months’ imprisonment on a charge of dangerous driving causing injury to Ms Pawa and he was also disqualified from driving for five years.

[3]       The appeal is against the prison sentence on the manslaughter charge only. 

[4]       The sentencing Judge described the factual background in the following terms:

[2] ... on the evening of 31 October 2003, you were with friends at a party where you drank alcohol. At about midnight you went to your car with friends and consumed some cannabis. The car was one that you had owned for less than a month.

[3] You then drove yourself and three passengers around the semi-rural part of Howick at speeds well in excess of the speed limit.  Your passengers pleaded with you to slow down as they feared for their safety. At about 1.00am you dropped two passengers off. You then told the remaining passenger you were in no state to drive.  You decided to go to a nearby park to sleep. At 1.15am you received a phone call asking you to pick two people up.  You did that.  You again drove at speeds far in excess of the speed limit.  Again the passengers pleaded with you to slow down.  You did not slow down.

[4] You entered an area where large roadworks signs were posted. Also clearly visible were the 30 kph speed limit signs.  Your car entered an area where there was loose chip. Your speed at this stage was estimated at 112kph, which was almost 80kph above the speed limit. You lost control of your car, it crossed the centre median and smashed through a fence into a house of Ms Pawa.  The impact ripped off a third of the front of the house.  One of your passengers, Leanne Medley, a 16 year old girl, died at the scene.  Your other passengers were uninjured.  Ms Pawa received lacerations to her body and eyes from flying glass whilst standing in her lounge.

[5] You are now 17 but were 16 at the time of the offence.  You only had a learners drivers licence.  At no time were you accompanied by an appropriately licensed person.

Counsel’s submissions

[5]       Mr Ryan reminded us that the second request for a ride was because two young people, including the woman who died in the accident, needed assistance in getting home and the appellant was used for a lift. 

[6]       It was also noted that, from the time that Mr Macswain was first spoken to, he had admitted the facts as outlined.

[7]       Mr Ryan, on behalf of the appellant, drew attention to five particular factors.  First, that the charge was manslaughter whereas in other not dissimilar instances people are charged with reckless or dangerous driving causing death where the penalties appear to be less severe.  

[8]       Secondly, as the forensic assessment report which was obtained by Mr Ryan from Kilpan and Associates, Psychiatrists and Psychologists, demonstrates, the appellant has an intellectual disability and a recognised mental disorder under the Mental Health Act and this should be weighed and reflected in the appropriate sentence.

[9]       Thirdly, there are other health problems within the appellant’s family which add to the burden of his incarceration.

[10]     Fourthly, counsel noted that there had been an optimism that matters might have been dealt with in the Youth Court and on a lesser charge which would have meant the probability of a more favourable outcome.

[11]     Finally, Mr Ryan drew attention to the fact that it was not fair to hold against the appellant a lack of a formal apology as, when he had sought to make contact with the deceased’s family and express his remorse, he had been advised that he must not go near them.

[12]     Counsel, in his inimitable style, accepted that his plea was really one for mercy for a man who, in a situation which was a tragedy for all the families involved, had made a serious error of judgment and greater leniency could have been extended to him.

[13]     The Crown noted that the sentencing Judge had properly assessed a starting point having regard to the aggravating features including the speed at which the car was being driven, the sustained course of two episodes of appallingly bad driving the same evening, the appellant knowingly breaching the conditions of his learner licence, his failure to respond to protestations about his manner of driving from his passengers during both episodes and the fact that he had both smoked cannabis and consumed alcohol during the relevant periods.

[14]     It was the Crown’s argument that, in light of decisions of this Court, a starting point of six to eight years was clearly available, that the discounts for a plea of guilty (which was not as early as it might have been) and for the particular problems and circumstances relating to the offender, were all within available sentencing discretion.

Discussion

[15]     Cases arising from teenage motor accidents where lives are lost are never easy.  The Court, however, has signalled a clear approach as reflected in many cases over the years including: R v Marsh (CA59/90) 28 June 1990, R v Grey (1992) 8 CRNZ 523, R v Takiwa (CA77/99) 11 May 1999, R v Pretty (CA277/00) 26 October 2000, and R v Grant (CA240/02) 11 December 2002.

[16]     In light of these authorities, a seven year starting point was clearly within the appropriate sentencing parameters.  The aggravating factors noted in para 13 made it a serious incident and the challenge cannot be successful in this regard.

[17]     The two discounts which were granted, having the effect of halving the sentence to be served, were also within range.  Some Judges may have constructed them in a different way, but the final sentence was a merciful response to a very serious incident.

Conclusion

[18]     The Court does not underestimate or ignore the human problems described by Mr Ryan in his eloquent submissions, but the need for deterrent sentences and condemnation of activity such as this which leads to a loss of life and injury must be placed in the balance as well.  The Court must sentence on the basis the prosecution is presented upon, giving weight to all relevant and often competing factors.

[19]     The appeal against sentence is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington