McArthur v Police - [2017] NZHC 1100

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2017-412-19 [2017] NZHC 1100

BETWEEN
HARRY SIMON MCARTHUR

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 May 2017

Appearances:

J Ross for the Appellant
R Smith for the Respondent

Judgment:

25 May 2017

JUDGMENT OF MANDER J

[1] The appellant, Mr Harry McArthur, was sentenced to 200 hours community work on one charge of careless driving causing injury. He was disqualified from driving for 10 months and ordered to make reparation of $30,000. He has appealed against the amount of community work, contending the sentence was manifestly excessive. No complaint is made regarding the period of disqualification or the amount of reparation.

Background

[2] The charge arises from a collision between Mr McArthur’s vehicle and a cyclist. Mr McArthur was turning right across a road and failed to see the approaching cyclist until moments before the impact. The cyclist hit the front of his vehicle and was propelled through the air. As a result, the cyclist suffered serious injuries, including fractures and a traumatic brain injury which has deeply impacted on his life and that of his family.

[3] In explanation, Mr McArthur stated to police that the sun partially impaired his vision and that it was not until he had embarked on the turning manoeuvre, after

MCARTHUR v POLICE [2017] NZHC 1100 [25 May 2017]

some trees blocked the sun, that he saw the bike directly in front of his bonnet, at which point he attempted to brake.

District Court’s decision

[4] The sentencing Judge noted Mr McArthur’s poor driving history. This included three convictions for operating a vehicle carelessly, a conviction for driving a motor vehicle at a dangerous speed, and one for failing to stop to ascertain injury. This indicated what the Judge described as “somewhat of an irresponsible attitude towards road use” and a “cavalier approach” to driving. The Judge concluded Mr McArthur had given little real thought to the safety of others on the road and had previously taken risks when driving.

[5] The devastating and profound life-changing impact on the victim and his family were acknowledged. The pre-sentence report recorded that Mr McArthur had expressed remorse for the victim, although it was noted he appeared to have put more thought into the consequences for himself than for his victim, which to some extent he had minimised. However, the Judge acknowledged and took into account submissions made on Mr McArthur’s behalf that he was remorseful and upset at what had happened to his victim, and that he was willing to attend a restorative justice conference.

[6] The Judge rejected Mr McArthur’s level of carelessness and degree of culpability as being at the lower end of the scale. He described it as moderate. The Judge considered it appropriate to impose a punitive element by way of an amount of community work in order to deter and denounce the offending, and ensure that Mr McArthur took responsibility for his actions.

[7] In imposing a period of disqualification, the…

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 McArthur v Police

Details

AGLC: McArthur v Police [2017] NZHC 1100
Case: [2017] NZHC 1100
Decision Date: 25 May 2017

CaseChat Overview and Summary

The appellant, Mr Harry McArthur, was sentenced to 200 hours of community work, a 10-month disqualification from driving, and a reparation order of $30,000 for a charge of careless driving causing injury. The sentence arose from a collision between Mr McArthur's vehicle and a cyclist, which resulted in serious injuries for the victim. Mr McArthur appealed against the amount of community work, arguing it was manifestly excessive.

The appeal raised several issues, including whether the sentencing judge erred in assessing Mr McArthur's level of carelessness and degree of culpability, whether the sentence breached the requirement to impose the least restrictive outcome, and whether the overall sentence was manifestly excessive.

The Court found that the sentencing judge was entitled to take into account Mr McArthur's previous history of traffic offending when assessing his culpability. The Court also found that the requirement to impose the least restrictive outcome related to the type of sentence, not its length. Finally, the Court concluded that the overall sentence, when viewed as a whole, was not manifestly excessive.

The appeal was dismissed.

Orders