Marx v Police
[2024] NZHC 1337
•24 May 2024
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-443-000014
[2024] NZHC 1337
BETWEEN CHLOE RUTH MARX
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 May 2024 (via VMR) Counsel:
M J Utting for Appellant
LA Blencowe for Respondent
Judgment:
24 May 2024
JUDGMENT OF LA HOOD J
Appeal against a sentence of home detention for dangerous driving causing injury
[1] Chloe Marx appeals against a sentence of eight months’ home detention and a two-year period of disqualification from driving imposed in the District Court on 26 March 2024,1 for four charges of dangerous driving causing injury.2 Ms Marx failed to give way at an intersection and hit another car, causing serious injury to passengers in the other car.
[2] On appeal, Mr Utting, for Ms Marx argues that the sentence of home detention was manifestly excessive on the grounds that the starting point was too high; insufficient discounts in mitigation were given; and the period of disqualification is manifestly excessive. The Crown submits that the Judge did not err and the end sentence is not manifestly excessive.
1 New Zealand Police v Marx [2024] NZDC 6940 [Decision on appeal].
2 Land Transport Act 1998, s 36(1)(b); maximum penalty five years’ imprisonment or $20,000 fine.
MARX v NEW ZEALAND POLICE [2024] NZHC 1337 [24 May 2024]
[3] I have concluded that the appeal should be allowed because the starting point was outside the available range, the credit for mitigating factors was clearly insufficient and the disqualification was excessive. The appropriate sentence was 11 months’ imprisonment, which should have been converted to the maximum period of community detention. The appropriate disqualification was 15 months.
The offending and decision on appeal
[4] Ms Marx, aged 33, pleaded guilty to four charges of dangerous driving causing injury on 30 November 2023. The offending is summarised in the Judge’s decision as follows:
[2] On the morning of 13 August last year, you were driving a car on Pitt Road, which is a rural road near Auckland. You were approaching an intersection with Great South Road, which at that point is also another rural road. There was minimal traffic, the road was dry, visibility was good. It was overcast so there was no problem with the sun.
[3] Pitt Road has a give way sign at the intersection and there is a sign warning of the upcoming give way sign 200 metres back from the intersection. There were also rumble strips across the road for 200 metres to indicate the upcoming intersection.
[4] As you were approaching the intersection another vehicle was travelling on Great North Road. You failed to give way at the intersection and collided with the side of the other vehicle. There were four people in the other vehicle, all suffered injuries.
[5] A 44 year old woman suffered multiple fractures to her pelvis, a broken bone in her leg, bleeding on the brain, concussion, and a deep laceration on the back of her head.
[6] A 77-year old year-old woman had an injury to her pelvis, she had brain bleeds, chipped vertebrae, and cuts on her face and forehead.
[7] A 75-year-old man had injuries including a broken sternum and a broken rib.
[8]An 11-year-old girl had brain bleed.
[9] There was also a dog in the car which suffered serious internal injuries.
[5] The Judge considered that the gravity of the offending was serious, and noted the multiple indications ahead of the intersection, “immediately before the intersection
and 200 metres before that” as well as “rumble strips”.3 The Judge described Ms Marx’s failure to look out at the intersection as seriously incompetent.4 The Judge factored in the serious injuries suffered by the victims, including the physical injuries and the emotional toll on the victims and their family.5 The Judge noted in particular that “the younger woman is still substantially disabled”.6 The Judge said:
[13] In cases such as this, it is difficult to assess overall culpability because very serious consequences may result from a single lapse of duty. Another factor is that the consequences which occurred were not intentional. They were, however, foreseeable. It is always foreseeable when you are driving a vehicle on the road approaching an intersection that there will be traffic coming the other way.
[6] The Judge took a starting point of two years and three months’ imprisonment.7 He held there were no personal aggravating factors.8 The Judge allowed credit of 25 per cent for prompt guilty plea;9 five per cent for remorse;10 and five per cent for good character.11 The Judge then converted the resulting end point of 17 and a half months’ imprisonment to a sentence of eight months’ home detention, factoring in Ms Marx’s otherwise good character, her lack of previous convictions, and her childcare responsibilities for (and the interests of) her six children.12 The Judge then disqualified Ms Marx from holding or obtaining a drivers licence for two years,13 and to pay reparation of $3,679.
Approach to appeal
[7] In Tutakangahau v R the Court of Appeal confirmed that a successful sentence appeal under s 250(2) of the Criminal Procedure Act 2011 requires both the identification of an error and the need for the appeal court to be satisfied that a different sentence “should” be imposed.14 The Court does not start afresh or simply substitute
3 Decision on appeal, above n 1, at [10].
4 At [10].
5 At [11].
6 At [11].
7 At [14].
8 At [15].
9 At [16].
10 At [17].
11 At [19].
12 At [21].
13 At [24].
14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
its own opinion for that of the original sentencer.15 Rather, the appellant must show there is a material error before the court goes on to form its own view of the appropriate sentence.16 The court will not generally intervene unless a sentence is manifestly excessive,17 and whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.18
[8] Thus, the issue for determination is whether there has been a material error that means the sentence was manifestly excessive.
Assessment of arguments and decision
The starting point
[9] Mr Utting, for Ms Marx, submits that the starting point of two years and three months’ imprisonment was too high. In support of this submission, he refers to a number of cases,19 and submits that a starting point in the range of 16–18 months would be appropriate at most. The Crown submits that the Judge appropriately identified the aggravating features of the offending, and that the starting point is appropriate.
[10] In assessing how dangerous the driving was, the Judge pointed to Ms Marx’s failure to recognise two warning signs ahead of the intersection and the serious injuries suffered by the victims. Although the presence of dangerous driving and injury are essential elements of the offence,20 the Judge was required to consider how dangerous the driving was and the seriousness of the victims’ injuries, as these matters affected culpability.21 The issue is whether inappropriate weight was placed on either factor, leading to an excessive starting point, and ultimately a manifestly excessive sentence.
15 At [30].
16 At [30].
17 At [35].
18 At [30]–[36].
19 Cao v Police [2015] NZHC 1793; Lay v Police [2024] NZHC 1118; Payne v Police [2024] NZHC 434; Hiroki-Kaka v Police [2023] NZHC 3774; Winiata v Police [2023] NZHC 3363; Ko v Police [2012] NZHC 3312; Singh v Police [2022] NZHC 3002; Tohu v Police [2021] NZHC 2660.
20 Hati v R [2017] NZHC 687 at [28].
21 Henderson v Police [2017] NZHC 2219 at [26].
[11] There were warning signs and rumble strips placed at intervals commencing 200 metres prior to the intersection. At the 200 metre point, the intersection is said to be clearly visible. The Crown submits, therefore, that the “level of distraction was more than momentary or fleeting” and the presence of warning signs was an aggravating feature. I agree that the failure to keep a look out, in light of the warnings, indicates a dangerous lapse of duty.
[12] The Crown submit, and I accept, that the extent of physical harm and emotional distress caused by the offending was a relevant consideration under s 9(1)(d) for the purpose of holding Ms Marx responsible for the consequences of her actions. In that respect:
(a)Heather Johns (in her early 40s) received multiple injuries: fractures to her pelvis, a brain bleed, concussion, a broken fibula and laceration to the head. She was bed bound for a significant period, requires multiple surgeries, has been unable to drive for seven months, and has a long future of rehabilitation ahead of her, only being able to take small slow steps at this stage. She also had to close her business (a dance studio), can no longer teach there (her only occupation), and consequently has suffered a considerable emotional and financial toll.
(b)Margaret Johns (aged 77) broke her pelvis, suffered from multiple brain bleeds, lacerations to her face and head, and two chipped vertebrae. She was hospitalised for approximately three weeks and required a walker for mobility following her release. Her physical injuries are healing slowly. She had to return to speech therapy due to the brain bleed occurring in the same area of a minor stroke earlier suffered.
(c)Peter Johns (aged 75) suffered a broken sternum and broken rib. He was hospitalised for three days and has ongoing difficulties breathing.
(d)Georgia Johns (aged 11) suffered a brain bleed and was in hospital for 48 hours for observation.
(e)Aaron Johns (in his mid 40s) escaped with only minor cuts and bruises but has suffered the financial and emotional toll from the impact of the offending on his family.
[13] There is no tariff case for sentencing of dangerous driving causing injury.22 Of the cases cited, the most assistance (in assessing the appropriateness of the Judge’s starting point) can be found from the following:
(a)In Lay v Police the Judge adopted a starting point of two years and three months’ imprisonment –– the same as in the present case –– for three charges of reckless driving causing injury,23 one charge of reckless driving, and one charge of failing to stop.24 The offending involved a high-speed car chase by rival gang members on a main arterial route in Rotorua at 6:00 pm on a Saturday during a high-traffic public holiday weekend. The chase continued for four kilometres, numerous civilians had to take evasive action, both cars ran through a red light and the defendant’s car collided with the victims’. Three victims suffered physical injuries.25 The Judge identified the aggravating factors as being: a prolonged course of extremely reckless driving; a gang motivated chase putting the public at serious risk and ultimately a collision; three victims suffered moderately serious injuries; and the defendant fled the scene.
22 The Court of Appeal in Gacitua v R [2013] NZCA 234 noted that the guidelines in R v Cooksley [2003] 3 All ER 40 (Crim App) are useful in “identifying some of the aggravating and mitigating factors relevant to sentencing in cases of this kind” (at [29]). However, the Court of Appeal did not necessarily endorse the sentencing bands and noted that establishing a New Zealand–specific approach would require specific consideration against the legislative framework and the sentencing methodology established in R v Taueki [2005] 3 NZLR 372 (CA) (at [28]).
23 Mr Utting emphasises in his submissions that reckless driving causing injury is a more serious offence than dangerous driving causing injury as it involves the added element of the driver being aware of the potential danger and acting despite knowledge of the possible consequences.
24 Police v Lay [2024] NZDC 4951; Lay v Police, above n 19. The starting point was not disturbed on appeal (which was brought on the grounds the Judge ought to have commuted the sentence to one of home detention and was dismissed by Grau J).
25 Lay v Police, above n 19, at [7]: “The first victim, the front seat passenger, received sprains to her neck, back and right ribs and bruising to both legs and torso. The second victim, the driver, received sprains to his ribs and right ankle, bruising to his face, both legs and an open wound on his right hand. The third victim, the rear seat passenger, received bruising to both legs. None of the victims provided victim impact statements.”
(b)In Winiata v Police the Judge adopted a starting point of two years and three months’ imprisonment –– the same as in the present case –– on the lead charge of dangerous driving causing injury (which was then uplifted to reflect further charges of driving with excess breath alcohol causing injury, failing to stop, assaulting a police officer, and driving whilst disqualified).26 The offending involved the driver driving 150 km/h in a 50 km/h zone during peak evening traffic, while intoxicated on alcohol and methamphetamine, and driving through a busy intersection, clipping a car that was taking evasive action, before crashing into a second stationary car. One of the victims was hospitalised with a serious pelvic injury and a concussion.27
(c)In Singh v Police the Judge adopted a starting point of two years’ imprisonment on the lead charge of causing injury while driving under the influence of drugs. The offender was also charged with reckless driving causing injury (considered to be concurrent offending) and possession of a methamphetamine utensil.28 The offending involved a persistent course of bad driving on a state highway, crossing the centre line, using both left and right lanes and forcing several motorists to take evasive action. The driver collided head on with the victims’ vehicle causing minor physical injuries. Methamphetamine was detected in the driver’s blood.
(d)In Henderson v Police on appeal the Judge considered a starting point of two years and nine months’ imprisonment was appropriate for the four charges of dangerous driving causing injury.29 The offender was driving with excessive speed, and the police attempted to stop him. He did not stop, and drove onto a state highway, reaching speeds in excess of 180km/h. He attempted to overtake a vehicle but pulled back due to
26 New Zealand Police v Winiata [2023] NZDC 19186; Winiata v Police, above n 19. The starting point was not disturbed on appeal. Your Honour noted that the Judge took “a stern but available starting point”.
27 The other victims were not injured but in shock.
28 New Zealand Police v Singh [2021] NZDC 18671; Singh v Police, above n 19.
29 Henderson v Police, above n 21.
oncoming traffic striking the rear of the vehicle, causing it to spin out. The victim’s suffered injuries. The offending involved intoxication, excessive speed, avoidance of police, and aggressive driving on a wet and dark road with other traffic present.
[14] In my view, the present offending does not reach the seriousness of the above cases, which attracted the same, or a similar starting point (except perhaps Henderson). Each of those cases involved aggravating features of the offending of the kind discussed in Gacitua v R;30 a prolonged pursuit in Lay, avoidance of police in Henderson, numerous other motorists being forced to take evasive action prior to the collision in Lay and Winiata, the presence of methamphetamine in the driver’s blood in Winiata, intoxication in Henderson, and the element of recklessness reflected in the charge in Lay.31
[15] Unlike those cases, the present offending involves a more temporary lapse of judgement, rather than a prolonged, persistent or intentional course of bad driving. There is no suggestion of intoxication or drug use. There is no suggestion of excessive speed. I accept Ms Marx’s ignorance of warning signs ahead of the intersection and allowing herself to be distracted by use of her satellite navigation and/or her child are culpability factors relevant to the seriousness of the offending. But it seems to me they are largely inherent to what makes this dangerous driving causing injury rather than careless driving causing injury.
[16] The Crown has not referred to any cases which, on the present facts, would support the Judge’s starting point. I acknowledge that care must be taken in relying on High Court appeal decisions where the starting point is often not in issue or the subject of analysis. But I accept Mr Utting’s submission that I should consider the above cases a valid guide to the appropriate starting point range.
30 Gacitua v R, above n 22, at [25] and [29].
31 In Henderson v Police, above n 21, at [33], Muir J noted that although reckless driving has the same maximum penalty as dangerous driving causing injury, the mental element of recklessness indicates a higher level of culpability, citing D'Almeida v Auckland City Council (1984) 1 CRNZ 281 (HC) at 282. However, Muir J said that the Judge was not wrong to use cases of reckless driving as a touch point when sentencing for dangerous driving.
[17] While recognising that each case turns on its own facts,32 I must also take into account the general desirability of consistency under s 8(e) of the Sentencing Act. I consider that the general tenor of the cases discussed above indicate that the Judge’s starting point of two years and three months’ imprisonment was beyond the available range. Counsel had some difficulty identifying cases involving a similar level of culpability to inform the appropriate starting point. In my view, it must be below the starting points adopted in Winiata, Lay and Singh. Taking into account the most significant aggravating feature, the number and extent of the injuries caused, I consider that the starting point could not have gone beyond 20 months’ imprisonment. No criticism of the Judge is intended by this conclusion. The Judge recognised it is “difficult to assess overall culpability because very serious consequences may result from a single lapse of duty” and the Judge did not have the benefit of the submissions I have received on appeal.
[18] I turn to consider Mr Utting’s challenge to the credit given for personal mitigating factors before returning to the issue of whether the starting point resulted in a manifestly excessive end sentence.
Credits applied for remorse and restorative justice
[19] Mr Utting submits that the Court erred in only providing a five per cent discount for remorse, and for failing to give a discount for restorative justice.
[20]In respect of remorse, the Judge said:
[17] Another factor raised by Ms Hurley on your behalf is remorse. You have written a letter to the victims expressing remorse, but I need to contrast that with what you said when you were interviewed for the pre-sentence report. There was no indication of remorse there. Rather, you tried to minimise your responsibility, saying you were distracted by your child asking a question. Overall, however, I reduce the sentence a further five per cent on that account.
[21] Mr Utting submits that the Judge misinterpreted Ms Marx’s comment to the pre-sentence report writer which was not intended to deflect responsibility, but rather
32 Gacitua v R, above n 22, at [22].
was explanatory of what she thought happened, and that she took full responsibility for it.
[22] Remorse qualifying for a discount must be something more than the bare acceptance of responsibility inherent in a guilty plea.33 The Court of Appeal recently summarised the approach in Kohu v R as follows:34
It is now well established that a discrete discount for remorse will be appropriate where a “proper and robust evaluation of all the circumstances” demonstrates that an offender is remorseful. Remorse need not be extraordinary, although it must be genuine. The onus is on the defendant to show it is so. This Court has previously stated that it will look for “tangible evidence, such as engagement in restorative justice processes”. Other examples include the voluntary payment of reparation, and efforts to remedy harm to the community. Where established, remorse tends to attract a discrete discount of between five and 15 per cent.
[23] My understanding is that credit for remorse is generally in the range of five to eight percent,35 although there may be rare instances where extraordinary steps attract a credit of around 15 per cent.36
[24] In terms of demonstrated remorse, before the Court was an apology letter from Ms Marx to the victims, which I accept demonstrates Ms Marx’s genuine remorse. There was also an offer to engage in restorative justice, however, Ms Marx was unable to travel to Auckland to engage in an in-person process. In her apology letter, she details that her life has been very busy, having recently gotten married, with three extra children in her new family. The victims understandably wished not to proceed remotely over Zoom.
33 Pene v R [2023] NZHC 1234 at [27]; Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [64];
and Moses v R [2020] NZCA 296, [2020] 3 NZLR 583, (2020) 29 CRNZ 381 at [24].
34 Kohu v R [2023] NZCA 343 at [40]; Moses v R, above n 33, at [24]–[26];; Hessell v R, above n 33, at [64]; and Sentencing Act, s 9(2)(f).
35 Cooper v Police [2021] NZHC 2574 at [63]; See for example Poi v R [2015] NZCA 300 at
[7] (willingness to pay reparation for medical expenses and lost income; appropriate discount would have been five per cent); Rowles v R [2016] NZCA 208 (genuine expression of remorse accompanied by payment of reparation; discount of eight per cent); and C v R [2022] NZHC 1807 (remorse demonstrated by tangible changes to lifestyle, including by ceasing the use of intoxicating substances, engagement with counselling, offer to participate in restorative justice, apology to victim, and offer of emotional harm payment; discount of eight per cent).
36 As noted by the Court in Kohu v R, above n 34, at [40], citing A v R [2018] NZHC 543 (remorse demonstrated through an “utmost effort” to participate in restorative justice, acceptance of offending, engagement with counselling, early guilty plea and efforts to combat alcohol use; discount of 16 per cent).
[25] Mr Utting submits that the Judge erred by not providing a discrete discount for Ms Marx’s willingness to attend restorative justice, despite it not going ahead for various reasons. Although participation in restorative justice processes is an indication of remorse,37 I agree with Radich J that “a willingness to engage in restorative justice is [not] enough in itself to justify a separate discount for remorse when unbundled from other genuine expressions”.38
[26] The Judge credited five per cent for Ms Marx’s good character. Ms Marx has no previous convictions and is positively regarded in the community.39 Credit for good character recognises “a fall from grace as punishment in itself” and “the greater potential for rehabilitation where community involvement and good character bears witness to a reduced probability of reoffending.”40 It is not unusual for overall credit for strong personal mitigating factors (other than a guilty plea) to be around 30 per cent.
[27] I consider an overall credit of 10 per cent for personal mitigating factors (excluding the guilty plea) was clearly insufficient. I consider credit of no less than 20 per cent was required given Ms Marx’s otherwise exemplary character, genuine remorse, payment of reparation, prospects of rehabilitation through completion of the driver improvement course that has been directed, lack of ongoing risk to the public, and the consequences of her sentence on her family (her husband has had to give up work to transport the children to their daily activities and keep the household running while she has been on home detention).
Conclusions on end sentence
[28] Having concluded that the starting point should not have been greater than 20 months’ imprisonment, applying the credits available – 25 per cent for guilty plea, 20 per cent for other personal mitigating factors – the end sentence becomes one of approximately 11 months’ imprisonment, which equates to five and a half months’ home detention. Proportionally, this decreases the sentence of home detention by just
37 See Poi v R [2015] NZCA 300 at [7]; and Rowles v R [2016] NZCA 208 at [18].
38 Pene v R, above n 33,at [27].
39 Sentencing Act, s 9(2)(g).
40 R v Findlay [2007] NZCA 553 at [91].
over a quarter. The sentence of eight months’ home detention was therefore manifestly excessive.
[29] On appeal, Mr Utting seeks a sentence of community detention. I understand that this is what the prosecution originally sought in the District Court. The pre- sentence report recommended a conviction and discharge with a payment of reparation to the victims. Community detention was supported as an option,41 whereas home detention or other restrictive sentences were not recommended. Ms Marx shares responsibility for six children with her husband who, as already noted, has had to cease working as a result of Ms Marx’s sentence of home detention. Ms Marx has been able to maintain her employment in a plant nursery while on home detention to support the family, but home detention has restricted her ability to assist with the children’s activities outside the home. I agree with Mr Utting that the principles and purposes of sentencing –– the need to hold Ms Marx to account,42 to promote a sense of responsibility for the harm caused while imposing the least restrictive outcome43 –– would be met by a sentence of the maximum period of community detention.44
[30] I accordingly allow the appeal, quash the sentence of home detention, and substitute a sentence of three months’ community detention (taking into account the two months Ms Marx has already spent on home detention),45 with the following conditions:46
(a)That Ms Marx be curfewed to her current address for the purposes of serving community detention;
(b)That Ms Marx be curfewed from 8.00 pm to 7.00 am Monday, Tuesday, Thursday, Friday, Saturday, and Sunday;
41 Ms Marx’s address was deemed suitable for electronic monitoring and there are no safety concerns raised about Ms Marx, the occupants or the address. The conditions of electronic monitoring have been explained to and are understood by Ms Marx.
42 Sentencing Act, s 7(1)(a).
43 Section 7(1)(b).
44 Section 69C.
45 Section 69B(2).
46 In addition to those automatically applicable pursuant to s 69E of the Sentencing Act 2002.
(c)That Ms Marx be curfewed from 9:30 pm to 7.00 am on Wednesdays to enable her to attend Kingdom Hall meetings at church; and
(d)That the above conditions render Ms Marx subject to electronic monitoring for a period of 75.5 hours per week.
Period of disqualification
[31] Mr Utting submits that the two year period of disqualification from driving is manifestly excessive and should be reduced to the minimum required (one year and one day). Counsel refers to Singh v Police,47 in which a two-year disqualification period was reduced on appeal to 13 months, noting the importance of being able to drive for employment and rehabilitation. He notes that Ms Marx’s risk of reoffending has been assessed as low, and she will be required to undertake rehabilitative steps (an improvement course) before driving again.
[32] The Judge imposed the two year disqualification period without reasons. While sentencing Judges have a broad discretion in determining the appropriate period of disqualification, it is not unfettered.48 The primary purpose of disqualification is to protect public safety by keeping dangerous drivers off the road.49 It appears that the period of disqualification imposed was linked to the Judge’s assessment of the gravity of the offending.
[33] I agree with Mr Utting that two years’ disqualification is particularly high, having regard to Singh, and given that Ms Marx does not have a poor driving record, and she has excellent prospects of rehabilitation. Once eligible to reapply for a licence, Ms Marx must undertake a driving test and have attended a driving improvement course.50 I consider a disqualification period of 15 months is sufficient to protect the public and the least restrictive sentence appropriate to hold Ms Marx accountable in the circumstances.
47 Singh v Police, above n 19.
48 Grant v Police [2017] NZHC 953.
49 Ropiha v Police [2016] NZHC 839 at [18].
50 Land Transport Act, ss 92 and 93.
[34] I therefore allow the appeal against the period of disqualification and substitute a period of 15 months’ disqualification.
La Hood J
Solicitors:
Thomson O’Neil & Co – Eltham Branch, South Taranaki for Appellant Crown Solicitor, New Plymouth for Respondent
0
20
0